The Rhetoric for Ratification: The Argument of 'The ...

Digital Commons @ University of Georgia Digital Commons @ University of Georgia

School of Law School of Law

Scholarly Works Faculty Scholarship

11-1-2006

The Rhetoric for Ratification: The Argument of "The Federalist" The Rhetoric for Ratification: The Argument of "The Federalist"

and Its Impact on Constitutional Interpretation and Its Impact on Constitutional Interpretation

Dan T. Coenen University of Georgia School of Law, [email protected]

Repository Citation Repository Citation Dan T. Coenen, The Rhetoric for Ratification: The Argument of "The Federalist" and Its Impact on Constitutional Interpretation (2006), Available at: https://digitalcommons.law.uga.edu/fac_artchop/376

This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University of Georgia School of Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ University of Georgia School of Law. Please share how you have benefited from this access For more information, please contact [email protected].

http://www.law.uga.edu/

http://www.law.uga.edu/

https://digitalcommons.law.uga.edu/

https://digitalcommons.law.uga.edu/

https://digitalcommons.law.uga.edu/fac_artchop

https://digitalcommons.law.uga.edu/fac_sch

https://docs.google.com/forms/d/e/1FAIpQLSc_7JxpD4JNSJyX6RwtrWT9ZyH0ZZhUyG3XrFAJV-kf1AGk6g/viewform

mailto:[email protected]

A RHETORIC FOR RATIFICATION:THE ARGUMENT OF THE FEDERALISTAND ITS IMPACT ON CONSTITUTIONAL

INTERPRETATION

DAN T. COENENt

ABSTRACT

Courts, lawyers, and scholars have long assumed that TheFederalist Papers supply important information for use inconstitutional argument and interpretation. In recent years,commentators have questioned this view. Their skepticism grows outof two major concerns. First, Justice Scalia's challenge to the use oflegislative history in the statutory context casts a cloud over judicialuse of background texts such as The Federalist in seeking themeaning of the Constitution. Second, even if courts may rely on somebackground materials in interpreting the Constitution, there is reasonto conclude that The Federalist does not qualify as the sort ofmaterial that provides useful guidance. The basic difficulty is that theauthors of The Federalist wrote their essays as advocacy documentsfor publication in local newspapers, rather than as scholarly textsdesigned to lay out in neutral fashion the purposes and terms of theConstitution. Building on this historical reality, analysts have properlyasked why courts should view a series of editorials, churned out tohelp win a heated political battle, as a key modern-day source ofconstitutional interpretation.

Copyright © 2006 by Dan T. Coenen.

f University Professor & J. Alton Hosch Professor of Law, University of Georgia. Theauthor thanks Kay Bramlett, Peter C. Buck, Jason Bumette, Nathan Chapman, MeghanDougherty, and William Todd for helpful editorial assistance. The article also profited fromcomments from four outstanding legal scholars, Milner Ball, Randy Beck, Walter Hellerstein,and Jay Tidmarsh, and three distinguished historians, John Inscoe, Randy Reid, and MichaelWinship. Quotations from The Federalist are set forth without alteration, complete withPublius's own misspellings and outmoded style of punctuation.

470 DUKE LAW JOURNAL [Vol. 56:469

This Article explores the proper role of The Federalist in thesearch for constitutional meaning. It demonstrates that the essays werein fact sophisticated advocacy documents that wove together differentstyles of rhetoric designed to win over readers to the cause ofratification. This reality requires courts to approach the papers with ameasure of caution. At the same time, the Article rejects the view thatthe campaign-literature purpose of The Federalist disqualifies it fromserving as an important touchstone of constitutional interpretation.This is the case primarily because the authors of The Federalist, inconceiving and structuring their argument, focused on making ahighly rational and highly comprehensive appeal to a broad anddiverse audience. Against this backdrop, The Federalist should beviewed as setting forth something akin to a consensus understandingof the Constitution.

TABLE OF CONTENTS

Introduction ............................................................................................. 471I. The Context Surrounding The Federalist ..................................... 474II. The A rgum ent of Publius ............................................................... 486

A. Attending to the Audience ....................................................... 487B. The Case from H istory ............................................................. 494

1. T he A ncients ......................................................................... 4942. B ritish Practice ...................................................................... 4973. State E xperience ................................................................... 4984. N ew Y ork .............................................................................. 500

C. Publius and Practical Reasoning .............................................. 502D. The Wisdom of Compromise ................................................... 509E. Im agery and M etaphor ............................................................. 514F. A ppeals to Em otion .................................................................. 517

III. Judicial Reliance on The Federalist ............................................... 527A . The Federalist as Icon ................................................................ 528B. The Federalist as Legislative History ....................................... 530C. The Federalist as Dictionary ..................................................... 533D . The Federalist as Treatise ......................................................... 535E. The Federalist as Brilliant Philosophy ..................................... 536F. The Federalist as Consensus Understanding .......................... 538G. The Consensus-Understanding View

and O ther Theories ................................................................ 540C onclusion ............................................................................................... 542

THE FEDERALIST

INTRODUCTION

The Federalist stands, head and shoulders above all else, as themost significant book in the history of American law and politicaltheory. Authored by Alexander Hamilton, James Madison, and JohnJay, The Federalist contains eighty-five essays on the origins,purposes, and teachings of the Constitution. The essays range acrossevery major subject of constitutional interpretation: the separation ofpowers, federalism, the judicial role, republicanism, the proper scopeof the congressional powers, the roots of legitimate government, thefunctions of the president, and the nature of rights.

The importance of The Federalist cannot be overstated.Throughout American history it has provided a pivot point ofargument in great struggles over constitutional meaning. Hamiltonand Madison themselves drew on The Federalist in debates over theconstitutionality of the National Bank Act and other early assertionsof federal authority.2 In the years leading up to the Civil War,Southern nullificationists and Northern unionists both invoked theessays,3 and modern-day proponents and opponents of sweepingexecutive powers have done so as well.' In scores of cases, and withmuch-increased frequency in recent decades, the Supreme Court hasdrawn on The Federalist in resolving hard-fought battles over whatthe Constitution means for disputants in the context of federallitigation. The essays are also the stuff of high political drama. In the

1. For an extensive examination of The Federalist's treatment of these subjects, seegenerally Dan T. Coenen, The Story of The Federalist: How Hamilton and MadisonReconceived America (April 21, 2006) (unpublished book manuscript, on file with the author).

2. Hamilton, for instance, quoted from Madison's The Federalist No. 44 in arguing thatthe bank bill was constitutional. RALPH KETCHAM, JAMES MADISON 321 (1971). Madison, inturn, quoted from Hamilton's treatment of the executive in The Federalist in challengingHamilton's support for the president's unilateral issuance of a proclamation of neutrality. Id. at346-47.

3. See Jack N. Rakove, Early Uses of The Federalist, in SAVING THE REVOLUTION 234,239 (Charles R. Kesler ed., 1987) ("During the debate over the admission to the Union ofMaine and Missouri, eight out of nine speakers who cited The Federalist did so while justifyingthe right of states to determine the propriety of slavery.").

4. See, e.g., DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING ACTIVITIES OFNATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 7 (2006), available athttp://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf (citing The Federalist No. 70 assupporting the president's authority in the area of national security); id. at 30 (citing TheFederalist No. 64 for the president's authority to undertake intelligence activities withoutcongressional approval).

5. See Ira C. Lupu, Time, the Supreme Court, and The Federalist, 66 GEO. WASH. L. REV.1324, 1329 (1998) (documenting the Supreme Court's common and increasing use of The

2006]

DUKE LA W JO URNA L

broadly publicized hearings on the appointments of John Roberts andSamuel Alito to the Supreme Court, for example, participants alludedto The Federalist on no fewer than eleven occasions.6

Against this backdrop, Americans often assume that the authorsof The Federalist prepared their famous text as a legal treatise or as ascholarly recapitulation on how the Constitution came to be. Thisview is wrong. In fact, the authors first published their essays in NewYork newspapers while citizens of that state struggled with whetherto support or oppose the proposed Constitution.7 More particularly,the Federalist essays responded to a torrent of tracts published byConstitution-opposing editorial writers who were at work in a keystate where a majority of voters appeared to lean against ratification.'

In short, The Federalist was an advocacy document, perhaps even"propaganda."9 Either way, the essential purpose of the essays was toset forth an argument. That argument, in turn, was designed tomaintain the loyalties of existing federalists while bringing undecidedand unsympathetic voters over to the proratification cause.Recognizing this essential function of The Federalist raises two basic,but little-explored, questions: First, just how did the essays' authorsseek to persuade the essays' readers? Second, how does the nature ofthe argument of The Federalist bear on judicial use of the essays inthe modern day? In this article, I seek to offer answers to thesequestions.

In Part I, I set the stage for further inquiry by sketching thehistorical context in which the essays were written. Because thepurpose of The Federalist was to persuade citizens to elect ratificationconvention delegates who would support the Constitution, the

Federalist in recent years); Buckner F. Melton, Jr. & Jennifer Miller, The Supreme Court andThe Federalist: A Supplement, 1996-2001, 90 KY. L.J. 415, 420-40 (2001) (tabulating referencesto The Federalist in Supreme Court opinions).

6. See Transcripts: The Roberts Confirmation Hearings, http://www.washingtonpost.com/wp-dyn/content/linkset2005/09/14/LI2005091402149.html (last visited Oct. 18, 2006) (statementsof Sen. Orrin Hatch, Sen. John Cornyn, Judge John Roberts, and Sen. Tom Coburn); Campaignfor the Supreme Court: The Politics of the Nomination of Samuel A. Alito, Jr., http:/blogs.washingtonpost.com/campaignforthecourt/2006/01/hearing-transcr.html (last visited Oct. 18,2006) (statements of Judge Samuel A. Alito, Jr.).

7. See infra text accompanying notes 18-20.8. See RON CHERNOW, ALEXANDER HAMILTON 262 (2004) (noting that the antifederalist

delegation elected to the New York ratification convention was over twice as large as that of thefederalists).

9. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 5(1980).

[Vol. 56:469

THE FEDERALIST

immediate circumstances in which those citizens found themselveswere of extreme importance to Hamilton, Madison, and Jay. Part Ithus directs attention to key background facts of the time, includingthe already-demonstrated shortcomings of the Articles ofConfederation, mounting frustrations with interstate trade conflicts,and rising fears brought on by growing debtor militancy, evidencedmost pointedly by the Massachusetts uprising known as Shays'sRebellion.

Building on Part I, I set forth in Part II a typology of therhetorical techniques used by the authors of The Federalist. I createdthis typology by employing a three-step process. First, I extracted allsignificant lines of argument presented in each of the eighty-fiveessays on all of the many subjects of controversy of the time (forexample, the need for a strengthened union to enhance militarycapabilities and commercial prosperity, the appropriateness of two-year terms for House members and six-year terms for senators, thelegitimacy of judicial review, etc.). Second, I sought to identify thedifferent styles of argument that cut across The Federalist's treatmentof these topics. Finally, I characterized and contrasted these styles,double-checking along the way to see that each subject-matterargument I had identified fell into at least one rhetorical category.

In the end, I conclude that Hamilton, Madison, and Jay utilizedsix major tools of argument. They made appeals to (1) the particularcircumstances of their audience; (2) the lessons of history; (3)practical reasoning; (4) imagery and metaphor; (5) the need forcompromise; and (6) emotional responses, including responsesinspired by America's revolutionary experience. Other observersmight well group the rhetorical tools of The Federalist in other ways.The key point to glean from this exercise, however, does not dependon precisely how the process of counting and characterizing is done.The key point is that-however that process might be fine-tuned-theargumentative strategy of The Federalist was nuanced and complex.

In Part III of the article, I explore the implications of Part II. Inparticular, I address the question whether courts may legitimately useThe Federalist as a tool of modern-day constitutional interpretation.Answering this question proves difficult because others haveadvanced a host of different theories as to why judicial use of theessays makes sense. I seek to show that the argumentative style of theessays creates difficulties for each of these theories, especiallytheories based on the utility of The Federalist as legislative history, asa dictionary-like guide to eighteenth-century word meanings, or as a

2006]

DUKE LAW JOURNAL

learned legal treatise. The argumentative style of the essays, however,supports the case for citing The Federalist in one important way.Because the Papers' authors sought to build wide support for theConstitution through careful appeals to reason, there is cause to viewtheir work as approaching a consensus understanding.

I. THE CONTEXT SURROUNDING THE FEDERALIST

On September 17, 1787, the members of the ConstitutionalConvention gathered for their last meeting in Philadelphia'sIndependence Hall. After months of toil that had demandedcompromise by every delegate, these statesmen prepared to sign achater of government like none that had ever existed before. Therewas cause for celebration, and a sense of accomplishment filled thechamber. Doubts for the future, however, mixed with the thrill of themoment.

Worries stemmed from the Constitution itself. In the document'sfinal article, the framers specified that the states should hold specialratification conventions to consider whether to approve theConstitution and thereby bring it into effect." Nobody could predictwhat would happen at those conventions, but everyone could seestorm clouds on the horizon. Most ominously, as the Conventionclosed, the delegations of the two most populous states, Virginia andMassachusetts, found themselves sharply divided." EdmundRandolph, joined in dissent by fellow Virginian George Mason, tookthe floor to predict that "[n]ine States will fail to ratify the plan." 2

Elbridge Gerry, one of three Massachusetts delegates, likewiserefused to sign the charter, predicting that in his state theConstitution might well contribute to the "calamitous event" of "aCivil war." 3

The news from New York was even less encouraging. That statehad sent three delegates to Philadelphia-John Lansing, Jr., RobertYates, and Alexander Hamilton. In July, however, the states-rights-

10. U.S. CONST. art. VII.11. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 648-49 (Max Farrand

ed., rev. ed. 1966) ("The Constitution being signed by all the members except Mr. Randolph [ofVirginia], Mr. Mason [of Virginia], and Mr. Gerry [of Massachusetts] who declined to give it thesanction of their names.").

12. Id. at 645-46; see also id. at 631 (setting forth a plan for inviting amendments from statedelegations and then holding a second convention in anticipation of failed ratification).

13. Id. at 647.

[Vol. 56:469

2006] THE FEDERALIST

minded Lansing and Yates abandoned the Convention altogether,stripping New York of even a quorum entitled to vote and leavingHamilton as the state's sole signatory of the final constitutionalproposal." By its terms, the Constitution would come into effect uponratification by nine states. Everyone knew, however, that the newnation stood little chance of success without the strategically situatedstate of New York, and it stood no chance at all if Virginia orMassachusetts abandoned the enterprise as well.15

Things would soon get worse for supporters of the Constitution.As the document circulated through the former colonies, prominentcritics stepped forward in large numbers. Dissenters included famouspatriots, such as Patrick Henry and Richard Henry Lee of Virginia, aswell as influential local leaders, such as Luther Martin of Marylandand James Winthrop of Massachusetts.'6 Opponents of theConstitution, who became known as "antifederalists,"' 7 moved swiftlyto block ratification. Scores of essayists, using names like "Cato," "APlebeian," and "Centinel," directed an avalanche of criticisms at theproposed Constitution almost as soon as it was made public by thePhiladelphia conventioneers."

14. Signature by just one of New York's three delegates meant that the state did notofficially join in the act of promulgating the Constitution, a fact in some tension with assertionslater made in The Federalist that "all the deputations composing the Convention... wereinduced to accede...." THE FEDERALIST No. 37, at 239 (James Madison) (Jacob E. Cooke ed.,1961).

15. See, e.g., Introduction to THE FEDERALIST PAPERS, at vii, viii-ix (Buccaneer Books1992) (noting that a successful government would require participation by Massachusetts, NewYork, Pennsylvania, and Virginia, and that "New York was the most difficult case with thestrongest opposition"); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THEAMERICAN CONSTITUTION 250 (2d ed. 2005) (finding that "the new government would havelittle prospect of succeeding" without the "large, powerful, and centrally located states" of NewYork and Virginia); JOHN FISKE, THE CRITICAL PERIOD OF AMERICAN HISTORY: 1783-1789,at 340 (Cambridge, Riverside Press 1888) (arguing that "the Union could never be cementedwithout" New York).

16. Martin, who was Maryland's attorney general at the time, had previously been amember of the Confederation Congress and the Philadelphia Convention, which he had left indisgust before its completion. Gregory Stiverson, Maryland: Necessity, the Mother of Union, inTHE CONSTITUTION AND THE STATES 131, 145 (Patrick T. Conley & John P. Kaminski eds.,1988). Winthrop took the lead in opposing the Constitution in Massachusetts, including bywriting critiques under the pen name "Agrippa." RICHARD B. MORRIS, WITNESSES AT THECREATION 225 (1985).

17. See, e.g., LINDA GRANT DE PAUW, THE ELEVENTH PILLAR 170 (1966).18. See THE FEDERALIST No. 40 (James Madison), supra note 14, at 263 (noting that

"publications... have swarmed against the Convention"). See generally 2-6 THE COMPLETEANTI-FEDERALIST (Herbert J. Storing ed., 1981) (collecting antifederalist tracts).

DUKE LAW JOURNAL [Vol. 56:469

The chances for ratification in New York looked especiallybleak. Prominent antifederalists such as Melancton Smith trumpetedobjections to the charter; Lansing and Yates soon joined the chorus; 9

and the local essayist "Brutus" (believed by many to have been Yateshimself2") leveled trenchant attacks against the Constitution. Thesecritics had much material to work with, especially in appealing toresidents of a state that had weathered recent economic distresses farbetter than most of the other former colonies. That the Empire State,with a population of over 300,000, was given no more voice in theSenate than Rhode Island, with a population of some 68,000,21 struckmany New Yorkers as outrageous." Some local citizens worried that afederal monopoly over import taxes would disadvantage a state thathad long leveraged its famous port to impose duties borne in largepart by nonresident buyers and sellers.23 Still other New Yorkersfeared that a strengthened federal Congress would reject land claimsmade by the state with regard to the disputed territory of Vermont.24

Most important of all, the state's leading political figure, Governor

19. See John P. Kaminski, New York: Adjusting to Circumstances, in THE CONSTITUTIONAND THE STATES 225, 234-35 (Patrick T. Conley & John P. Kaminski eds., 1988) ("Yates andLansing waited a while before publicly declaring their objections to the proposedconstitution.").

20. 2 THE COMPLETE ANTI-FEDERALIST, supra note 18, at 358.

21. The 1790 census reported that New York had a population of 340,120 and Rhode

Island a population of 68,825. RICHARD L. FORSTALL, U.S. BUREAU OF CENSUS, POPULATIONOF STATES AND COUNTIES OF THE UNITED STATES: 1790-1990, at 4 (1996).

22. See, e.g., Brutus III, N.Y. J., Nov. 15, 1787, reprinted in 2 THE COMPLETE ANTI-FEDERALIST. supra note 18, at 377, 379 (criticizing as "unreasonable, and unjust" the equality ofrepresentation between Delaware on the one hand and Massachusetts and Virginia on the

other). But see id. at 447 n.26 (editorial note) (observing that "[t]he question of theapportionment of Senate seats equally among the states was one on which the Anti-Federalistswere equivocal" and that several antifederalists, including Brutus, seem not to have beenconsistent on this point).

23. See, e.g., CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE

CONSTITUTION OF THE UNITED STATES 28-29 (1986) (footnote omitted) (noting that "themanorial lords of the Hudson valley region... took advantage of [their] predominance to shiftthe burden of taxation from the land to imports, and this fact contributed powerfully to [their]opposition to the Constitution, because it implied a transference of the weight of taxation forstate purposes to the soil"); CHERNOW, supra note 8, at 244 (asserting that "[t]he tariff issueheld special force in New York"). But see DE PAUW, supra note 17, at 174 & n.19 (discussing theconflicting views of historians Thomas C. Cochran and Forrest McDonald on whether impost-

related concerns were a significant factor as New Yorkers considered the Constitution).

24. See Kaminski, supra note 19, at 228-29 ("The state's claim to the area known asVermont was disputed" and "delegates warned [Governor] Clinton about the possible attempts

to seize New York's northwestern territory").

476

2006] THE FEDERALIST 477

George Clinton, took up the antifederalist banner.25 Support for theConstitution from George Washington, who had served as Presidentof the Philadelphia Convention, and Benjamin Franklin, who had satas the Convention's most senior member, surely counted forsomething. These icons, however, did not hail from New York, wherethe popular Governor Clinton wielded a potent influence. Thatinfluence was so great that some believed the governor alone woulddetermine in the end the outcome of the ratification battle.26

It was into this vortex that Alexander Hamilton chose to throwhis talents as a theorist, strategist, and writer. Hamilton was anarchenemy of Governor Clinton,27 an experienced political essayist,2

and a lawyer steeped in the skills of advocacy.29 He had a commitmentto the constitutional project matched by few in America, and he also

25. See, e.g., JOHN P. KAMINSKI, GEORGE CLINTON 135 (1993) (noting that Clinton at first"refused to take a public stand on the new form of government" but that, "[w]ithin a short time,the governor's opposition to the Constitution was widely reported").

26. John P. Kaminski has noted that Clinton was very popular as governor, id. at 9, andWilliam L. Stone wrote of the "vast influence" Clinton wielded "in his day," William L. Stone,

George Clinton, MAGAZINE OF AMERICAN HISTORY, June 1879, at 329, 354. Indeed, Clintonwas so popular that he was elected seven times. KAMINSKI, supra note 25, at 2. According tofederalists, the governor was indeed the focal point of the opposition. Referring to Clinton, oneobserver opined that "'[t]he Helmsman leads a majority by the nose just as he pleases."' John P.Kaminski, New York: The Reluctant Pillar, in THE RELUCTANT PILLAR 48, 99 (Stephen L.Schechter ed., 1985) (quoting Extract of a letter from New York (July 20, 1788), in NEW

HAMPSHIRE Spy, July 29, 1788).

27. For example, in a piece dated July 21, 1787, anonymously published in the DailyAdvertiser, Hamilton accused Governor Clinton of undermining the work of the PhiladelphiaConvention. CHERNOW, supra note 8, at 237. Hamilton wrote that "such conduct in a man highin office, argues greater attachment to his own power than to the public good, and furnishesstrong reason to suspect a dangerous predetermination to oppose whatever may tend todiminish the former, however it may promote the latter." Alexander Hamilton, N.Y. DAILYADVERTISER, July 21, 1787, reprinted in 4 THE PAPERS OF ALEXANDER HAMILTON 229, 232(Harold C. Syrett ed., 1962). Not surprisingly, this letter stirred much hostility in the state andhelped render Hamilton and Clinton lifelong political antagonists. Hamilton's antipathy forGovernor Clinton also surfaced in The Federalist. See THE FEDERALIST NO. 77 (AlexanderHamilton), supra note 14, at 518 (asserting that "a great number of very improperappointments" had been made by the executive council, which included Governor Clinton;noting that "whether he [seeks] the advancement of persons, whose chief merit is their implicitdevotion to his will" and whether he seeks to advance a "despicable and dangerous system ofpersonal influence, are questions which unfortunately for the community can only be thesubjects of speculation and conjecture").

28. See GARRY WILLS, EXPLAINING AMERICA 59 (1981) (noting Hamilton's early work asan essayist, beginning at age eighteen).

29. See, e.g., CHERNOW, supra note 8, at 168 (noting that Hamilton's law manual was "soexpertly done, its copious information so rigorously pigeonholed, that it was copied by hand andcirculated among New York law students for years").

DUKE LAW JOURNAL

had valuable experience in government-as Washington's chief aidein the early years of the Revolution, as a battlefield commander laterin the war, as a member of the New York legislature following theRevolution, and as a representative to the Confederation Congress.3"Hamilton's legendary self-assurance was in full flower by 1787, as washis unmatched zeal in battling political adversaries of every sort.'Propelled by these forces, Hamilton took the lead in defending theConstitution in his home state.

The first order of business was to devise a plan. Hamilton woulddo what was expected by meeting with local citizens, by plottingfederalist tactics, and by seeking one of the 65 seats at his state'sratifying convention.32 The core of his strategy, however, involved aproject so ambitious that it was not pursued anywhere else in thenation. Hamilton would oversee the production of an elaborate seriesof essays, to be published in local newspapers, that made the case forratification.33 In keeping with the fashion of the day, these tractswould bear only a pen name, and-in an effort to sound a high-tonednote of public-spiritedness-Hamilton chose the title "Publius."

Hamilton's next order of business was to find collaborators. NewYork's most prominent federalist, John Jay, quickly signed onto theproject. Jay had not served as a delegate to the PhiladelphiaConvention, but he was an ardent supporter of the Constitution and awell-versed student of government. Indeed, few Americans-and noNew Yorkers-could match Jay's record of federal service.34 He hadsat as a delegate to both the First and the Second ContinentalCongresses, as President of the wartime federal Congress, and asminister to Spain from 1780 to 1782. Along with fellow luminariesBenjamin Franklin and John Adams, Jay had served on thenegotiating team that produced the peace treaty that ended theRevolutionary War and, as of the time of the writing of The

30. See id. at 100-02 (as Washington's aide); id. at 163-64 (as commander at Yorktown); id.at 173 (service in Confederation Congress); id. at 221 (service in New York Assembly).

31. See, e.g., id. at 60 (describing the "slashing style of attack" that "would make Hamiltonthe most feared polemicist in America").

32. See DE PAUW, supra note 17, at 186 ("Alexander Hamilton held a seat from NewYork....").

33. See, e.g., CHERNOW, supra note 8, at 222 (describing Hamilton as "editorialimpresario" of the Papers); id. at 246 (reporting that "Hamilton conceived [the] ambitiouswriting project").

34. JACK N. RAKOVE, ORIGINAL MEANINGS 254 (1996) (noting that "Jay was the mostprominent national official" after 1783).

[Vol. 56:469

THE FEDERALIST

Federalist, he held the Confederation's most important office asSecretary of Foreign Affairs. In the end, however, Jay wouldcontribute little to the project. A severe bout of rheumatism put himon the sidelines after he completed only four tracts, and he wouldlater find time to pen only one more essay."

Who would fill the breach created by Jay's unavailability?Gouvernor Morris declined an invitation to participate, and WilliamDuer, a New York City federalist who would later write as "Philo-Publius," proved incapable of producing work that met Hamilton'sexacting standards.36 The great stroke of luck, for Hamilton and forthe nation, came through a coincidence of scheduling. Following itsformation in 1781, the hapless federal legislature created by theArticles of Confederation had wandered from Philadelphia toPrinceton to Annapolis to Trenton.37 In the fall and winter of 1787,however, the Confederation Congress was meeting in New YorkCity. 8 This turn of events meant that Virginia representative JamesMadison, fresh from the Constitutional Convention, was near at handas Hamilton contemplated who should help him wield the quill ofPublius 9

Madison was uniquely well qualified to collaborate on theproject. Like Hamilton, he was an ardent student of government whohad served in both his own state's legislature and the ConfederationCongress.4" Madison had also played a key role at the Philadelphia

35. DE PAUW, supra note 17, at 106-07.36. Id. at 107-08. Duer had previously "served in the Continental Congress" and the

convention that framed the New York Constitution. CHERNOW, supra note 8, at 293. He wasalso an inveterate speculator and a continuing presence in Hamilton's life. In particular, Duer'slater mishandling of joint business dealings would later bring Hamilton great embarrassmentand Duer himself seven years in debtors' prison. See id. at 381-88 (Duer "was packed off todebtors' prison" and "Hamilton was appalled to learn of Madison's allegation that his purchasesof government securities to steady the market had been made at high prices to benefitspeculators").

37. See FISKE, supra note 15, at 271 ("[T]he Continental Congress had skipped about fromPhiladelphia to Princeton, to Annapolis, to Trenton, to New York, until it had become alaughing-stock ... ").

38. Congress had been meeting in New York since November 7, 1785. See 23 LETTERS OFDELEGATES TO CONGRESS, 1774-1789, at xii (Paul H. Smith ed., 1995) (providing chronology).

39. See Martin Diamond, The Federalist, in HISTORY OF POLITICAL PHILOSOPHY 659, 659(Leo Strauss & Joseph Cropsey eds., 3d ed. 1987) (asserting that Hamilton brought in Madison"ironically, only after several others had declined his invitation").

40. See KETCHAM, supra note 2, at 158 (calling Madison the "leader of the group anxiousto continue the reform in the laws of Virginia"); id. at 179 (attributing Madison's candidacy andelection to a desire to maintain the credibility of the national government).

2006]

DUKE LAW JOURNAL

Convention itself, including by crafting the main features of the so-called Virginia Plan, which had provided the starting point fordiscussions among the delegates. 1 Madison, in contrast to Hamilton,had dutifully attended and fruitfully participated in every session ofthe Convention. He had also taken extensive notes of the proceedingsand written lengthy tracts on constitutional theory even before theConvention commenced.42 If Hamilton was a lightning rod ofcontroversy, Madison-at least as of 1787-seemed to be a paragonof understated brilliance and good will.4 Writing of the Virginian,Georgia delegate William Pierce observed:

[Elvery Person seems to acknowledge his greatness. He blendstogether the profound politician, with the Scholar .... From a spiritof industry and application which he possesses in a most eminentdegree, he always comes forward the best informed Man of anypoint in debate.44

Pierce added that "[i]n the management of every great question,"Madison "took the lead in the Convention"-and rightly so because,about "[t]he affairs of the United States, he perhaps, has the mostcorrect knowledge of, of any Man in the Union." 5

That history has adjudged Madison the "Father of theConstitution 4 6 suggests that Pierce was right in emphasizing hiscritical role in bringing about the "Miracle at Philadelphia., 47 The

41. See, e.g., RAKOVE, supra note 34, at 59 (noting that the Virginia delegation approved"articles incorporating the essential elements of Madison's pre-Convention analysis" and thatthis Virginia Plan provided the focal point for the Convention's early debates).

42. See KETCHAM, supra note 2, at 184-89 (detailing Madison's research and writings onthe theory of the extended republic); id. at 195-96 (describing Madison's motivation for takingnotes during the Philadelphia Convention).

43. See JOSEPH J. ELLIS, FOUNDING BROTHERS 53 (2000) (observing that Madison"seemed to lack a personal agenda" and was "eager to give credit to others, especially hisopponents"); id. at 57 (noting that "[u]nlike Jefferson, he could be genuinely gracious indefeat"); id. at 74 (highlighting "Madison's matchless political savvy").

44. William Pierce, Character Sketches of Delegates to the Federal Convention, in 3 THERECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 11, at 87, 94.

45. Id.46. See Benjamin Fletcher Wright, Introduction to THE FEDERALIST 1, 8 (Benjamin

Fletcher Wright ed., 1961) (noting that Madison, though "on the losing side in a number ofimportant votes in the Convention[,]... is more nearly the author of the Constitution of 1787than any other man").

47. Both Washington and Madison referred to the events at Philadelphia as a "miracle,"and Catherine Drinker Bowen used "Miracle at Philadelphia" as the title of her well-knownaccount of the Constitutional Convention. CATHERINE DRINKER BOWEN, MIRACLE ATPHILADELPHIA, at ix (1966).

[Vol. 56:469

THE FEDERALIST

Miracle at Philadelphia, however, would have no enduring impactunless leading states, including New York, joined in ratification. So asthe autumn of 1787 moved toward winter, Hamilton, Madison, andJay put their shoulders to the wheel. The Federalist No. 1, written byHamilton, appeared on October 27. Jay contributed Nos. 2, 3, 4, and 5in a period that spanned October 31 to November 10. Madison's firstcontribution-the justly famous The Federalist No. 10-was publishedon November 22.48 By the time Publius surrendered to exhaustion inMay of 1788, seventy-seven separate essays had made theirappearance in New York newspapers and eight more had surfaced inthe book version of Publius's work.

Despite these efforts, word on the street in early 1788 indicatedthat ratification in New York was doubtful. America's spiralingstruggles under the Articles of Confederation, however, gaveHamilton and his collaborators cause for hope.49 The essentialproblem was well known: the Articles of Confederation vested thecentral government with so little power that the states operated muchlike independent nations. ° In theory, the federal Congress could wagewar, make treaties, and conduct relations with Native Americantribes. But the Articles sapped these powers of energy by denyingCongress the authority to raise an army on its own or to impose taxesdirectly on American citizens.5 Instead, the federal government couldgather funds and troops only by demanding contributions from thestates, which often hesitated to comply. 2 This system of "quotas" and"requisitions" produced a steady stream of budget shortfalls and

48. Jacob E. Cooke, Introduction to THE FEDERALIST, at xi, xiii (Jacob E. Cooke ed.,1961).

49. For major treatments of this period in addition to FISKE, supra note 15, see MERRILLJENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE

CONFEDERATION, 1781-1789 (1950), MORRIS, supra note 16, and JACK N. RAKOVE, THEBEGINNINGS OF NATIONAL POLITICS: AN INTERPRETATIVE HISTORY OF THE CONTINENTAL

CONGRESS (1979). A useful bibliography appears in MORRIS, supra, at 263-67.50. See, e.g., GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-

1787, at 356-57 (1993) (noting that the states exercised even powers forbidden by the Articles ofConfederation). Notably, the Articles of Confederation reserved to the states "every power,jurisdiction, and right... not... expressly delegated to the United States, in Congressassembled" and did not expressly delegate the Confederation Congress many of the powers thepresent-day Congress possesses, including the powers to lay taxes and to regulate interstate andforeign commerce. ARTS. OF CONFEDERATION art. II.

51. ARTS. OF CONFEDERATION art. IX.

52. See BOWEN, supra note 47, at 5 (noting that "[tihe Confederation... had no power tocollect taxes [or] defend the country" and "[o]ften enough there was no response" to Congress'srequisitions for money).

2006]

DUKE LA W JO URNA L [Vol. 56:469

escalating aggravation among citizens throughout the nation.53 Inparticular, the defaults of some states in meeting their obligationsbred animosities-and further defaults-on the part of other states.54

Because of these conditions, Hamilton could observe in TheFederalist No. 30 that "the government of the Union has graduallydwindled into a state of decay, approaching nearly to annihilation."55

By 1787, many citizens shared his view that the federal government's"radical vice" of a wholesale dependence on the states had broughtAmerica to the "last stage of national humiliation." 6

Problems related to commerce also plagued the Confederation.The central government's inability to impose taxes left it hard-pressedto deal with an ever-mounting debt that had grown out of theRevolution. 7 To make matters worse, the states created a dizzyingarray of currencies58 that experienced sharp shifts in valuation, thusspawning economic uncertainty and loss.5 9 Meanwhile, states throughwhich commercial traffic flowed enacted self-serving legislation thatburdened neighboring jurisdictions.6° These problems cried out fornational solutions. Federal authorities were eager to act. Thegovernment created by the Articles of Confederation was so feckless,

53. Hamilton knew particularly well the difficulties of the requisition system. On October1, 1787, and twice thereafter, the following notice appeared in the New York Packet: "THESUBSCRIBER has received nothing on account of the quota of this State for the present year.(Signed) ALEXANDER HAMILTON, Receiver of Continental Taxes." Id. The situation in otherstates was doubtless worse, as New York assertedly paid a greater proportion of what thecongress requested than did any other state in the post-Revolution years. See DE PAUW, supranote 17, at 10 ("When peace returned and the collection of taxes improved, New York paid alarger percentage of her Congressional requisitions than did any other State.").

54. See BOWEN, supra note 47, at 5 ("The states which paid were bitter against the stateswhich did not, and said so.").

55. THE FEDERALIST NO. 30 (Alexander Hamilton), supra note 14, at 188; see also THEFEDERALIST NO. 15 (Alexander Hamilton), supra note 14, at 91 (adding that "[t]here is scarcelyany thing that can wound the pride, or degrade the character of an independent nation, whichwe do not experience").

56. THE FEDERALIST NO. 15 (Alexander Hamilton), supra note 14, at 93.57. See FISKE, supra note 15, at 104-05 (describing Congress's failure to produce income

and the resultant loss of creditworthiness); MORRIS, supra note 16, at 124-25 (detailing amountsof budget shortfalls).

58. See FISKE, supra note 15, at 171 (noting that the existence of "different kinds of papercreated such a labyrinth as no human intellect could explore").

59. See id. at 176 (noting that one dollar of paper money in Rhode Island issued in May1786 was only worth sixteen cents by November of that year).

60. See, e.g., Kaminski, supra note 19, at 228 (describing the effects of New York's impostsystem upon neighboring states); see also THE FEDERALIST NO. 42 (James Madison), supra note14, at 283 (describing the need for "relief of the States which import and export through otherStates, from the improper contributions levied on them by the latter").

THE FEDERALIST

however, that it lacked even the nominal power to regulate interstateand foreign commerce.

One instance of failed reform demonstrates pointedly theineffectiveness of the government under the Articles ofConfederation. In 1782, a fiscal crisis triggered support from twelveseparate states for letting Congress lay duties directly on importers.Tiny Rhode Island, however, held out. The other states hadconditioned their approval of the plan on unanimous support, inkeeping with the rule that amendments to the Articles ofConfederation required each state's consent, so that Rhode Island'srejection operated as an effective veto.6' That a state occupied by lessthan two percent of the nation's people could block a measure sowidely endorsed and so greatly needed struck most Americans as theheight of folly.62

Perhaps it was poetic justice that the greatest economic crisis ofthe preconstitutional period reared its head in the same state thatstubbornly resisted reform efforts designed to bolster the nation'sfiscal powers. Rhode Island, like other states, experienced intensecontroversies over the issuance of paper money during the 1780s.63

Creditors opposed this medium of payment because it lackedinherent value. Debtors, however, saw things differently. Theypressed state governments to print paper money, to assign it a fixedvalue, and to distribute it in sufficient volumes to provide a soft-money medium for paying off hard-money loans.'4 Debtors alsoencouraged legislators to pass so-called "stay laws," which delayedthe ability of creditors to collect debts even after they had fullymatured.65

61. See DE PAUW, supra note 17, at 33.62. See, e.g., THE FEDERALIST NO. 22 (Alexander Hamilton), supra note 14, at 140

(lamenting the system under which "[a] sixtieth part of the Union ... has several times beenable to oppose an intire bar to its operations").

63. FISKE, supra note 15, at 173.64. See id. at 174 (discussing efforts to use "promissory notes of a bankrupt government" to

pay "real money" debts). Some modem historians have been more charitable toward theproponents of paper money. See, e.g., PATRICK T. CONLEY, DEMOCRACY IN DECLINE: RHODEISLAND'S CONSTITUTIONAL DEVELOPMENT 1776-1841, at 88 (1977) (arguing that the "realmotives.., were tax relief and reduction of the state debt"); id. at 89 (arguing that "the paperplan must be considered a success").

65. See 1 GEORGE BANCROFT, HISTORY OF THE FORMATION OF THE CONSTITUTION OF

THE UNITED STATES OF AMERICA 228-41 (3d ed., New York, D. Appleton 1883) (describinglaws interfering with contracts in several states, including stay laws).

2006]

DUKE LAW JOURNAL

Many Americans, especially in the propertied classes, saw gravedanger in debtor-relief laws and quick-fix paper money schemes. InRhode Island, however, a "debtor party" captured the statehouse andproceeded to implement aggressive reforms. In particular, thelegislature permitted the printing of vast amounts of new currency-more dollars per person than in any other state-and then it forcedcreditors to take the currency in payment of past debts at face value.66

In addition, Rhode Island laid heavy fines on merchants who rejectedpayment in currency and also went so far as to strip persons chargedwith this offense of the benefit of trial by jury.67 These movestriggered turmoil in Rhode Island and beyond, particularly amongnonresidents who had lent money to Rhode Island borrowers.Mounting resentments raised concerns that commercial antagonismssoon might give way to interstate conflicts of a bloodier kind.68

The threat of armed hostilities was not without substance. In thewinter of 1783, the Continental Army was encamped in Newburgh,New York, where officers fumed about the federal government'swavering on whether to honor debts owed to Revolutionary Warveterans.69 Frustrations boiled over into open talk of marching onCongress, and fliers advocating just that course of action began tocirculate in camp. With a dramatic speech, General Washingtonquelled the gathering tempest.7" Three months later, however,another band of embittered troops did march on Philadelphia all theway from western Pennsylvania. Once in town, these mutineersransacked local arsenals and surrounded Independence Hall. Again,local authorities put down the threat of violence, but not before

66. GEORGE BROWN TINDALL, AMERICA: A NARRATIVE HISTORY 260 (1984).

67. CONLEY, supra note 64, at 90. The highest court of Rhode Island refused to enforce thelaw stripping defendants of the right to a jury trial. As Patrick T. Conley has pointed out, theformal reason given was that the court lacked jurisdiction, but the state legislature and manyhistorians interpreted the court's action as declaring the statute unconstitutional. Id. at 95-96.

68. See, e.g., THE FEDERALIST NO. 7 (Alexander Hamilton), supra note 14, at 42(cautioning that wars may result from "[Il]aws in violation of private contracts as they amount toaggressions on the rights of those States, whose citizens are injured by them"); see also id. at 39(counting "[t]he competitions of commerce" among the states as a "fruitful source ofcontention").

69. On the so-called Newburgh Conspiracy, and the events leading up to it, see MORRIS,supra note 16, at 127-33.

70. CHERNOW, supra note 8, at 178-79 ("The mutinous soldiers, inexpressibly moved, wereshamed by their opposition to Washington and restored to their senses.").

[Vol. 56:469


Congress had taken leave of Pennsylvania to seek protection fromNew Jersey's presumably more reliable militia.

Risks of armed conflict with foreign powers also threatened theinfant nation. Britain, which was outraged by American refusals topay off English creditors as required by the Revolution-concludingTreaty of Paris, ignored its own obligations to abandon forts in thesparsely populated Northwest and fomented Native American attackson settlers in that region." Meanwhile, Spain, which controlled thelower stretch of the Mississippi, blocked American navigation of theriver and waited for settlers in present-day Kentucky and Tennessee"to abandon their feeble Congress for the solid commercialadvantage of Spanish citizenship."73

The forces of turbulence took their most troubling turn during1786 in western Massachusetts. There, a crisis arose afterconservatives in the Boston statehouse adopted a policy of paying offwar debts in hard currency, a choice that imposed severe hardships onfarmers and the poor, as taxes rose and money supplies tightened. Asa result, an armed band of disillusioned locals under the leadership ofDaniel Shays marched on a county courthouse, demanding relief.7 1

The uprising was quickly put down. 75 News of Shays's Rebellion,however, gripped a fearful nation.76 Rhode Island's radical paper

71. Id. at 180, 181-82.72. Id. at 394; see also AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY

141 (2005) (noting that Britain retained five forts within New York, "thereby blocking freeaccess to the lucrative fur trade and complicating American relations with Indian tribes in theregion").

73. JOHN M. BLUM ET AL., THE NATIONAL EXPERIENCE 121 (3d ed. 1973). Nor were theSpanish mere passive observers in seeking to induce American secession in favor of Spanishrule. As noted by Professor Morris: "James Wilkinson, as unsavory a character as bestrode theWestern scene, a man given to lying, bullying, or fawning as circumstances dictated, devotedhimself to the task of separating Kentucky from Virginia in order to turn it over to Spain, forwhom he served as a secret agent." MORRIS, supra note 16, at 124.

74. E.g., FISKE, supra note 15, at 180. The Shays brigade also went after guns at an arsenalin Springfield, Massachusetts. Upon being told that the weapons stored there belonged to thefederal government, Shays offered a telling response: "To hell with Congress! That crowd is tooweak to act." MORRIS, supra note 16, at 173.

75. See, e.g., FISKE, supra note 15, at 182-83 ("A few minutes sufficed to scatter [Shays'smen] in flight.").

76. The impact of the uprising was heightened because it did not stand alone. As ProfessorMorris has written:

[B]ackcountry resistance to debt and tax collection was a contagion that spread fromNew England to pockets of law defiance evident from New Jersey to South Carolina.In June of 1786 "a tumultuous assemblage of the people" closed down Maryland'sCharles County courthouse, and boycotts against the sale of debtor property werespreading rapidly in other parts of Maryland. In South Carolina, farmers attacked the

DUKE LA W JO URNAL

money reforms had revealed the potential excesses of localizeddemocracy. Shays's Rebellion raised the more ominous specter thatthe new nation stood on the precipice of anarchy.

It was in this context that Hamilton, Madison, and Jay undertookto make the case for ratification in The Federalist Papers. Just howthey made their case for ratification is considered in Part II.

II. THE ARGUMENT OF PUBLIUS

A modern observer might well suppose that ratification of theConstitution was a sure bet under the difficult conditions of late 1787.That, however, is far from true. Both before and after thePhiladelphia Convention, there was broad agreement thatproliferating problems under the Articles of Confederation called fora more vigorous central government. There was massivedisagreement, however, about the way in which that governmentshould be structured.77 In particular, many feared that the newlyproposed Constitution would bring about such a dramatic shift fromstate to national power that Americans soon would labor under theyoke of a distant and unresponsive consolidated government. As oneantifederalist (who, with a touch of irony, called himself "AFederalist") observed: "I had rather be a free citizen of the smallrepublic of Massachusetts, than an oppressed subject of the greatAmerican empire. 7

1

Critics also hurled dozens of specific objections at the handiworkof the Convention. Was it not clear that an aristocracy would grow

Camden courthouse and sent the judges scurrying home. In Virginia .... [i]n May of1787 a mob burned down the King William County courthouse, destroying all therecords, and court proceedings were blocked in other county courts as well.

MORRIS, supra note 16, at 176.77. See, e.g., Impartial Examiner V, VA. INDEP. CHRON., June 18, 1788, reprinted in 5 THE

COMPLETE ANTI-FEDERALTST, supra note 18, at 197, 199 (agreeing that "the Congress are notinvested with sufficient powers for regulating commerce, and procuring the requisitecontributions... for the common defence or general welfare" but seeing "no necessity for aninnovation further than strengthening [the Congress]" because of fear "that no security for...liberties will remain after [the Constitution's] adoption"); AN OLD WHIG IV, PHILA. INDEP.GAZETrEER, Oct. 1787-Feb. 1788, reprinted in 3 THE COMPLETE ANTI-FEDERALIST, supranote 18, at 30, 30-34 (asserting that "experience seems to have convinced every one, that thearticles of confederation.., are insufficient for the purposes intended" but objecting to theConstitution on the ground that the resulting federal republic would be too large to functioneffectively).

78. A Federalist, BOSTON GAZETrE, Nov. 26, 1787, reprinted in 4 THE COMPLETE ANTI-FEDERALIST, supra note 18, at 117, 118.

[Vol. 56:469

THE FEDERALIST

out of a Senate made up of a mere twenty-six members elected to six-year terms? Was not a House of Representatives with only sixty-fivemembers too small to produce meaningful connections betweenelected legislators and their constituents? Would not the absence ofrestrictions on presidential re-election inevitably lead to theemergence of a de facto monarch? And why on earth did theConstitution omit a Bill of Rights? These were fair challenges, andcritiques of this sort found expression in hundreds of writingsunleashed by furious antifederalists. With the proposal of thePhiladelphia Convention, like so much in life, the devil was in thedetails. And many citizens preferred the devil they knew over thedevil they did not.

As the authors of The Federalist surveyed this scene, they soughta rhetoric suited to the purpose at hand. The essays would have tospeak of enduring themes, and they did so. At bottom, however, thetracts were campaign literature. As a result, The Federalist delivered apartisan argument, and that argument did not draw its greateststrength from appeals to lofty abstractions. Instead its force camefrom a web of persuasion spun from history, emotion, sharedconcerns, and common sense, all woven together to capture thesupport of New Yorkers in 1787 and 1788.

The whole of The Federalist exceeded the sum of its parts. Still,the parts were important, and critical components of the case madeby Publius built on (1) the characteristics and desires of the localaudience; (2) history and accepted practice; (3) practical reasoning;(4) imagery and metaphor; (5) openness to compromise; and (6)emotional responses, including responses inspired by America'srevolutionary tradition.

A. Attending to the Audience

Because Hamilton, Madison, and Jay wrote The Federalist fornewspapers, they trained their sights on local readers-shopkeepersand shippers, farmers and merchants, the wealthy and the middleclass, the cautious and the bold. Among these readers lurkedconcerns of all sorts, from theoretical scruples held by politicallyminded intellectuals to bottom-line fears of business owners facedwith the prospect of dual taxation.79 The fortunes of many men-

79. See, e.g., THE FEDERALIST No. 36 (Alexander Hamilton), supra note 14, at 227-29(noting concerns over double taxation).

2006] 487

DUKE LAW JOURNAL

particularly local political figures who faced "diminution of thepower, emolument and consequence of the offices they hold underthe State-establishments"-hung in the balance.'

Hamilton took heed of these forces as he charted the direction ofthe essays. In The Federalist No. 1, he worried openly that "[t]he planoffered to our deliberations, affects too many particular interests,innovates upon too many local institutions, not to involve in itsdiscussion a variety of objects foreign to its merits, and of views,passions and prejudices little favourable to the discovery of truth."'"He also perceived that pulls against ratification were both"numerous" and "powerful" even for "wise and good men."' As aresult, Publius set out to "determine clearly and fully the merits ofthis Constitution," a task that would involve "examining it on all itssides; comparing it in all its parts, and calculating its probableeffects.""3 In short, the Federalist Papers would be long. The authorswould strive to give "a satisfactory answer to all the objections whichshall have made their appearance that may seem to have any claimto... attention. '"' The argument of Publius, however, would offermore than a series of counterpunches. Spread through the text wouldbe affirmative appeals to the interests and concerns of a diverse andskeptical audience situated in 1787 in the state of New York.

In keeping with their purpose, the authors of The Federalistfocused attention on shared worries of their time and place. Talk of

80. THE FEDERALIST No. 1 (Alexander Hamilton), supra note 14, at 4.81. Id. Madison expressed much the same thought in No. 37:

It is a misfortune, inseparable from human affairs, that public measures are rarelyinvestigated with that spirit of moderation which is essential to a just estimate of theirreal tendency to advance or obstruct the public good; and that this spirit is more aptto be diminished than prompted, by those occasions which require an unusualexercise of it.

THE FEDERALIST No. 37 (James Madison), supra note 14, at 231.82. THE FEDERALIST No. 1 (Alexander Hamilton), supra note 14, at 4.83. THE FEDERALIST No. 37 (James Madison), supra note 14, at 231. Meticulous attention

was necessary, Madison added, because "the act of the Convention... recommends so manyimportant changes and innovations, which may be viewed in so many lights and relations, andwhich touches the springs of so many passions and interests." Id. at 231-32. Hamilton worriedthat such a painstaking treatment might at times prove "tedious and irksome" to readers. THEFEDERALIST No. 15 (Alexander Hamilton), supra note 14, at 90. The cost was worth the price,however, because the project addressed "a subject. . . most momentous" and was complicatedby "the mazes with which sophistry has beset the way." Id.

84. THE FEDERALIST No. 1 (Alexander Hamilton), supra note 14, at 7 (emphasis added).

[Vol. 56:469


Rhode Island's intransigence,' interstate trade conflicts, 6 and Shays'sRebellion87 made frequent appearances in the essays. The writersdrew on the fears of their day. In particular, The Federalist remindedreaders at every turn that a failure to adopt the Constitution meantretaining the Articles of Confederation, under which a "melancholysituation" had taken hold.'

The argument of Hamilton, Madison, and Jay appealed todifferent voting blocs. They targeted prospective borrowers,emphasizing that credit had been "reduced within the narrowestlimits" due to an "opinion of insecurity" born of a weak centralgovernment. 9 They pleaded for the support of urban propertyowners, arguing that the depressed "price of improved land... canonly be fully explained by that want of private and public confidence,which are so alarmingly prevalent among all ranks and which have adirect tendency to depreciate property of every kind." 9 For patronsof frugality, Hamilton devoted a full essay to detailing why theConstitution promised economies of scale that made cost-basedobjections "appear in every light to stand on mistaken ground."9'Manufacturers and planters needed a strong union to supply "aflourishing marine"; otherwise a dependence on foreign carriers

85. See, e.g., THE FEDERALIST No. 7 (Alexander Hamilton), supra note 14, at 42-43 ("Wehave observed the disposition to retaliation excited in Connecticut, in consequence of theenormities perpetrated by the legislature of Rhode-Island .... ")

86. See id. at 39-40 (noting that, left unchecked, states would tend to pursue trade policiesto their own benefit and the detriment of their neighbors); THE FEDERALIST No. 11 (AlexanderHamilton), supra note 14, at 71-72 (advocating a uniform interstate trade system); THEFEDERALIST No. 22 (Alexander Hamilton), supra note 14, at 135-37 (same); THE FEDERALIST

No. 42 (James Madison), supra note 14, at 283-85 (same); THE FEDERALIST No. 45 (JamesMadison), supra note 14, at 314 (same).

87. See THE FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 31, 35 (cautioningthat uprisings like Shays's Rebellion could have dangerous consequences for the republic); THEFEDERALIST No. 21 (Alexander Hamilton), supra note 14, at 131 (same); THE FEDERALIST No.28 (Alexander Hamilton), supra note 14, at 177 (same); THE FEDERALIST No. 74 (AlexanderHamilton), supra note 14, at 502 (same).

88. THE FEDERALIST No. 15 (Alexander Hamilton), supra note 14, at 92.89. Id.90. Id.; see also THE FEDERALIST No. 12 (Alexander Hamilton), supra note 14, at 74

(noting that it had been "found, in various countries, that in proportion as commerce hasflourished, land has risen in value").

91. THE FEDERALIST No. 13 (Alexander Hamilton), supra note 14, at 82. Indeed,Hamilton supplemented his extensive discussion of this subject in No. 13 with a furthertreatment in No. 84. See THE FEDERALIST No. 84 (Alexander Hamilton), supra note 14, at 587(concluding that "the sources of additional expence from the establishment of the proposedconstitution are much fewer than may have been imagined").

DUKE LAW JOURNAL

would compel us "to content ourselves with the first price of ourcommodities, and to see the profits of our trade snatched from us toenrich our enemies and persecutors. '" 92 Why should fishermen-whose "spirit of enterprise" had rendered them "able to undersell[European] nations in their own markets"-support theConstitution? 3 Because without a government energetic enough tonegotiate fair treaties with foreign powers, nothing would be "morenatural, than that they should be disposed to exclude... suchdangerous competitors" from the grant of local trading privileges.94

Time and again, Publius appealed to special concerns of the NewYork audience. Equal representation of the states in the proposedSenate, for example, might rankle residents of large and fast-growingNew York. Hamilton emphasized in The Federalist No. 22, however,that the system adopted by the Philadelphia Convention, whichpaired the Senate with a House apportioned solely on the basis ofpopulation, improved on the existing system, under which eachstate-no matter what its size-had only one vote.9 In The FederalistNo. 35, Hamilton observed that alternative constitutional proposalswould deny Congress the power of general taxation and insteadpermit only the imposition of duties on imports from foreigncountries. 96 "New-York," he added, "is an importing State, and is notlikely speedily to be to any great extent a manufacturing State. Shewould of course suffer in a double light from restraining thejurisdiction of the Union to commercial imposts." 97 In The FederalistNo. 41, Madison noted that New York faced special dangers becauseits "sea coast is extensive" and it "is penetrated by a large navigableriver for more than fifty leagues." 9 Resulting vulnerabilities to navalassault-much heightened by "the precarious situation of Europeanaffairs"-made New York a likely future "hostage, for ignominouscompliances with the dictates of a foreign enemy, or even with therapacious demands of pirates and barbarians."' Safety in thesecircumstances could come only from a strong federal navy. But "[i]n

92. THE FEDERALIST No. 11 (Alexander Hamilton), supra note 14, at 69.93. Id. at 69-70.94. Id. at 70.95. THE FEDERALIST No. 22 (Alexander Hamilton), supra note 14, at 138-39.96. THE FEDERALIST No. 35 (Alexander Hamilton), supra note 14, at 216-18.97. Id. at 217.98. THE FEDERALIST No. 41 (James Madison), supra note 14, at 275.99. Id.

[Vol. 56:469

THE FEDERALIST

the present condition of America, the states more immediatelyexposed to these calamities, have nothing to hope from the phantomof a general government which now exists."

In The Federalist No. 25, Hamilton shifted his attention tonorthern New York, pointing to his state's shared border withEnglish-occupied Canada. Danger from British armies confronted allthe states, but New York was "more directly exposed," and acontinuing drift toward disunity would require it to bear the full costof border-area fortifications.' "Upon the plan of separate provisions,New-York would have to sustain the whole weight of theestablishments requisite to her immediate safety, and to the mediateor ultimate protection of her neighbours."'" Such a system, Hamiltonobserved, would not be "safe as it respected the other States."' 3 Evenmore important, it would not be "equitable as it respected New-York. ,, 04

Hamilton, Madison, and Jay also sought to cultivate the supportof their audience by plying their readers with compliments. Publiuspraised "the present genius of the people,"'0 5 whom he described as"considerate and virtuous, ' ' "candid and judicious,''' 7 "impartialand discerning,"'0 8 and "intelligent and well informed."'" The "gallantcitizens of America," for example, would never acquiesce in the useof federal armies to overthrow legitimate state authorities." New

100. Id.101. THE FEDERALIST No. 25 (Alexander Hamilton), supra note 14, at 158. Nor was an

exposure to foreign invaders of only theoretical interest to New Yorkers in the 1780s. AsProfessor Wright explained:

In a city that had been occupied by British forces for almost seven years during theRevolution (longer than any other city) and in a state that was the site for majorbattles and whose northern and western frontiers had suffered from British armiesand Indian raids, it was scarcely necessary to underline the point that war isunpleasant. Moreover, five of the posts that England had not given up, but hadcontinued to occupy in violation of the Treaty of 1783, were in New York State.

Wright, supra note 46, at 18.102. THE FEDERALIST No. 25 (Alexander Hamilton), supra note 14, at 158.103. Id.104. Id.105. THE FEDERALIST No. 55 (James Madison), supra note 14, at 375.106. THE FEDERALIST No. 10 (James Madison), supra note 14, at 57.107. THE FEDERALIST No. 36 (Alexander Hamilton), supra note 14, at 230.108. THE FEDERALIST No. 23 (Alexander Hamilton), supra note 14, at 148.109. THE FEDERALIST No. 3 (John Jay), supra note 14, at 13.110. THE FEDERALIST No. 46 (James Madison), supra note 14, at 322.

2006]

DUKE LAW JOURNAL

Yorkers were "little blinded by prejudice, or corrupted by flattery."'' .The very institution of republican self-government revealed that thereexists no small "portion of virtue and honor among mankind.""' 2

Rhetoric of this kind created tension with those parts of TheFederalist that emphasized the need to fashion government to theshortcomings of human nature, and steering a course between thesecompeting ideas took some artful, maneuvering. Publius met thechallenge primarily by stressing the difference between politicalleaders and the general citizenry. Without question, someAmericans-especially those drawn to public office-would embracea "love of power""' 3 and prove "capable of preferring their ownemolument and advancement to the public weal."".. Among ordinarycitizens, however, the great danger came not from malevolence orunchecked self-centeredness, but from "temporary errors anddelusions."" 5 Thus, "people commonly intend the PUBLIC GOOD,"and "[t]his often applies to their very errors."".6 The difficulty, asMadison explained in The Federalist No. 63, came from "particularmoments in public affairs, when the people stimulated by someirregular passion, or some illicit advantage, or misled by the artfulmisrepresentations of interested men, may call for measures whichthey themselves will afterwards be the most ready to lament andcondemn.""17 It was no insult to recognize these conditions becauseeven the most praiseworthy citizens "know from experience, that they

111. THE FEDERALIST NO. 63 (James Madison), supra note 14, at 424-25; see also THE

FEDERALIST NO. 49 (James Madison), supra note 14, at 340-41 (noting "the success.., whichdoes so much honour to the virtue and intelligence of the people of America").

112. THE FEDERALIST NO. 76 (Alexander Hamilton), supra note 14, at 514; see also THEFEDERALIST No. 55 (James Madison), supra note 14, at 378 (arguing that "[w]ere the pictureswhich have been drawn by the political jealousy of some among us, faithful likenesses of the

human character, the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them fromdestroying and devouring one another"); THE FEDERALIST No. 57 (James Madison), supra note14, at 386 (noting that "the universal and extreme indignation which [ingratitude] inspires, isitself a proof of the energy and prevalence of the contrary sentiment").

113. THE FEDERALIST NO. 15 (Alexander Hamilton), supra note 14, at 97.

114. THE FEDERALIST NO. 59 (Alexander Hamilton), supra note 14, at 402. Indeed,government service would always attract "a few aspiring characters" who seek to abuse powerto their own "subversive" ends. THE FEDERALIST No. 57 (James Madison), supra note 14, at386. And in almost any individual representative, some "motives of a... selfish nature" wouldoperate, including "pride and vanity." Id.

115. THE FEDERALIST NO. 63 (James Madison), supra note 14, at 425.


117. THE FEDERALISTNO. 63 (James Madison), supra note 14, at 425.

[Vol. 56:469


sometimes err.""' Indeed (and here Publius reached the apex ofplaying both sides of the table), "the wonder is, that they so seldomerr as they do; beset as they continually are by the wiles of parasitesand sycophants, by the snares of the ambitious, the avaricious, thedesperate; by the artifices of men, who possess their confidence morethan they deserve it."" 9 Publius appealed to the "accuracy andcandour"'20 and the "cool and deliberate sense' 121 of the broadercommunity in urging ratification. Human frailty would come into playas citizens grappled with the Constitution because "there is a degreeof depravity in mankind which requires a certain degree ofcircumspection and distrust.' ' 22 There were, however, also "otherqualities in human nature," and Publius argued that the idea of self-government reflects confidence that human virtue was sufficient, inthe absence of tyranny, to "restrain [citizens] from destroying anddevouring one another." '23 After all, "the people of any country...seldom adopt, [or] steadily persevere for many years in, an erroneousopinion respecting their interests.' 24 It was largely in this way that afrequent depiction of the citizenry as virtuous and wise comportedwith Publius's simultaneous calls for extreme caution in shaping thestructures of republican self-rule.


119. Id. But cf Wright, supra note 46, at 83 (asserting that Publius does not "fall back on thecommon and unfortunate view that politicians are less virtuous than private citizens").

120. THE FEDERALIST No. 45 (James Madison), supra note 14, at 314.


122. THE FEDERALIST No. 55 (James Madison), supra note 14, at 378; see also THE

FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 35 (noting that people "are yetremote from the happy empire of perfect wisdom and perfect virtue").

123. THE FEDERALIST No. 55 (James Madison), supra note 14, at 378; see THE FEDERALISTNo. 76 (Alexander Hamilton), supra note 14, at 513-14 (claiming that "[t]he supposition ofuniversal venality in human nature is little less an error in political reasoning than thesupposition of universal rectitude"); THE FEDERALIST No. 57 (James Madison), supra note 14,at 385 (noting that "[tlhere is in every breast a sensibility to marks of honor, of favor, of esteem,and of confidence, which, apart from all considerations of interest, is some pledge for gratefuland benevolent returns"); see also Wright, supra note 46, at 79-80 (drawing on ProfessorScanlon's work in asserting that Publius's "method of 'reasoned discourse' reflected theassumption "that his readers could be helped to see beyond their immediate prejudices andeven beyond their local or personal, but still immediate, self-interest and to decide on the basisof what may be termed a long-run view of their interests"); see also id. at 14 ("The authors ofThe Federalist did not... hold a romantic view of the nature of man, but they were influenced

by the Age of Reason to the extent of believing that man's reason was adequate to the task ofdevising satisfactory political institutions, provided continuity with past experience ingovernment was maintained.").

124. THE FEDERALIST No. 3 (John Jay), supra note 14, at 13.


B. The Case from History

Appeals to history complemented The Federalist's focus on theinterests of New York readers. Over and over, Madison emphasizedthat "[e]xperience is the oracle of truth"'125 and "the guide that oughtalways to be followed.' ' 1 6 Hamilton likewise saw history as "theparent of wisdom' '12 7 and "the least fallible guide of humanopinions."'" More than 100 years later, Oliver Wendell Holmes, Jr.would declare that "the life of the law has not been logic: it has beenexperience.' ' 29 Publius held the same view, maintaining in TheFederalist No. 43 that "theoretic reasoning.., must be qualified bythe lessons of practice.' 30 These words reflected an outlook of deepsignificance to the three authors of The Federalist, for each of themwas an insatiable student of history. Madison, for example, hadimmersed himself in the study of past governments throughout themonths preceding the Constitutional Convention,' and Hamilton'sand Jay's investigations of history were little less impressive.'32

Lessons gleaned from historical research pervaded The Federalist,reaching from Greek and Roman history through British experienceto the recent experiments with government of the American states.

1. The Ancients. At the heart of The Federalist's treatment ofhistory-especially in Nos. 19 and 20-were sobering depictions of



127. THE FEDERALIST NO. 72 (Alexander Hamilton), supra note 14, at 490.128. THE FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 32; accord THE

FEDERALIST No. 15 (Alexander Hamilton), supra note 14, at 96 (describing history as the "bestoracle of wisdom").

129. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Boston, Little, Brown, & Co.1881).


131. See, e.g., KETCHAM, supra note 2, at 183-85 (describing Madison's exhaustive study ofthe history of federated governments during the spring and summer of 1786).

132. See CHERNOW, supra note 8, at 24 (noting "Hamilton's omnivorous, self-directedreading"); id. at 52 (recounting that Hamilton "ransacked the library" while in college in hisstudies of philosophy and law); id. at 110-12 (explaining how Hamilton "constantly educatedhimself" during the war, spitting out 112 pages of notes from readings ranging from Bacon toPostlethwayt to Plutarch); id. at 137 (noting that "[i]n his spare time, Hamilton pored overfinancial treatises"); id. at 206 (noting that "Hamilton read widely and accumulated booksinsatiably" in the post-Revolution period and that he "never stopped pondering the ancients").Jay attended King's College in New York City beginning in 1760 (at the age of fourteen) andthere encountered the classical histories of Herodotus and Thucydides, as well as the legaltheories of Grotius. WALTER STAHR, JOHN JAY 9-11 (2005).


republics and confederacies of the distant past. Tracking then-dominant traditions of classical learning, Hamilton, Madison, and Jaylaced their essays with allusions to Athens,33 Sparta,' Thebes, 35 theAchaean League of ancient Greece, 36 and the Lycian League of AsiaMinor. 37 There were treatments of Rome,'38 Carthage, 39 and moremodern European experiments in government. 14 Careful attention

141 141was paid to the United Netherlands,' Swiss cantons, postfeudalGerman alliances,' 3 and the legislature of Poland.'"

133. THE FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 29, 32; THEFEDERALIST No. 18 (James Madison), supra note 14, at 110-17; THE FEDERALIST No. 25(Alexander Hamilton), supra note 14, at 163; THE FEDERALIST NO. 38 (James Madison), supranote 14, at 240-41; THE FEDERALIST NO. 55 (James Madison), supra note 14, at 374; THEFEDERALIST No. 63 (James Madison), supra note 14, at 425,427.

134. THE FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 32; THE FEDERALISTNO. 18 (James Madison), supra note 14, at 110-17; THE FEDERALIST No. 63 (James Madison),supra note 14, at 426.

135. THE FEDERALIST No. 18 (James Madison), supra note 14, at 111, 113.136. Id. at 113; THE FEDERALIST No. 38 (James Madison), supra note 14, at 240-41; THE

FEDERALIST NO. 45 (James Madison), supra note 14, at 310; THE FEDERALIST NO. 70(Alexander Hamilton), supra note 14, at 473.

137. THE FEDERALIST No. 9 (Alexander Hamilton), supra note 14, at 55-56; THEFEDERALIST No. 45 (James Madison), supra note 14, at 310.

138. THE FEDERALIST No. 5 (John Jay), supra note 14, at 27; THE FEDERALIST NO. 6(Alexander Hamilton), supra note 14, at 32; THE FEDERALIST NO. 34 (Alexander Hamilton),supra note 14, at 209-10; THE FEDERALIST NO. 38 (James Madison), supra note 14, at 240-41;THE FEDERALIST No. 41 (James Madison), supra note 14, at 271; THE FEDERALIST No. 63(James Madison), supra note 14, at 426, 428; THE FEDERALIST No. 70 (Alexander Hamilton),supra note 14, at 471-80.

139. THE FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 32; THE FEDERALISTNo. 63 (James Madison), supra note 14, at 426-27.

140. See, e.g., THE FEDERALIST NO. 24 (Alexander Hamilton), supra note 14, at 152(observing that the antifederalist objection to standing armies in times of peace was "incontradiction to the practice of other free nations").

141. THE FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 33; THE FEDERALISTNO. 20 (James Madison), supra note 14, at 124-27; THE FEDERALIST No. 39 (James Madison),supra note 14, at 250; THE FEDERALIST No. 42 (James Madison), supra note 14, at 284; THEFEDERALIST No. 43 (James Madison), supra note 14, at 291-92; THE FEDERALIST NO. 75(Alexander Hamilton), supra note 14, at 508.

142. THE FEDERALIST NO. 19 (James Madison), supra note 14, at 122-23; THE FEDERALISTNo. 42 (James Madison), supra note 14, at 284; THE FEDERALIST No. 43 (James Madison),supra note 14, at 292-93.

143. THE FEDERALIST No. 12 (Alexander Hamilton), supra note 14, at 74; THEFEDERALIST No. 14 (James Madison), supra note 14, at 86; THE FEDERALIST No. 19 (JamesMadison), supra note 14, at 117-20; THE FEDERALIST No. 22 (Alexander Hamilton), supra note14, at 137; THE FEDERALIST NO. 42 (James Madison), supra note 14, at 284; THE FEDERALISTNo. 43 (James Madison), supra note 14, at 292; THE FEDERALIST No. 80 (AlexanderHamilton), supra note 14, at 536-37.

DUKE LAW JOURNAL

Hellenic experience laid waste to the notion-central to thephilosophy underlying the Articles of Confederation-thatconfederated governments could direct legislative commands only atmember states, rather than at individuals. Indeed,

of all the confederacies of antiquity, which history has handed downto us, the Lycian and Achaean leagues, as far as there remainvestiges of them, appear to have been most free from the fetters ofthat mistaken principle, and were accordingly those which have bestdeserved, and have most liberally received the applauding suffragesof political writers.45

In particular, the experiences of Lycia and Achaea revealed that aconfederated government could hold the power to regulateindividuals without destroying the sovereignty of confederacymembers. "[H]istory does not inform us," Madison wrote, "that eitherof them ever degenerated or tended to degenerate into oneconsolidated government.

1 46

Rome's experiments also offered important lessons of which theConstitution's drafters had taken proper heed. Was it advisable torequire the ratification of treaties by two-thirds of the wholemembership of the Senate, rather than two-thirds of those present tovote? Such an approach might require de facto unanimity amongthose in attendance, and "the examples of the Roman tribuneship"revealed the "impotence, perplexity and disorder" that would resultfrom this form of legislative sign-off. 47 Would it not be wise tocommit the executive power to more than a single person? "Romanhistory records many instances of mischiefs to the republic from thedissentions between the consuls.... " 48 Despite these dangers, mightthere not be offsetting gains in keeping the executive power out of thehands of just one officer? Rome "gives us no specimens of anypeculiar advantages derived to the state, from the circumstance of theplurality of those magistrates.' 49

144. THE FEDERALIST No. 14 (James Madison), supra note 14, at 86; THE FEDERALIST No.19 (James Madison), supra note 14, at 122; THE FEDERALIST No. 22 (Alexander Hamilton),supra note 14, at 140; THE FEDERALIST No. 39 (James Madison), supra note 14, at 251; THEFEDERALIST No. 75 (Alexander Hamilton), supra note 14, at 508.

145. THE FEDERALIST No. 16 (Alexander Hamilton), supra note 14, at 99.146. THE FEDERALIST No. 45 (James Madison), supra note 14, at 310.147. THE FEDERALIST No. 75 (Alexander Hamilton), supra note 14, at 508.148. THE FEDERALIST No. 70 (Alexander Hamilton), supra note 14, at 473.

149. Id.

[Vol. 56:469

THE FEDERALIST

2. British Practice. The authors of The Federalist oftenconsulted British history, emphasizing that it "presents tomankind .. . many political lessons.' 5° As to the Constitution's closerbonding of the states, the successful integration of England, Scotland,and Wales provided a model for America to follow.'' It was enoughto say in defense of the Intellectual Property Clause that the "copyright of authors has been solemnly adjudged in Great Britain to be aright at common law.' 52 As to the lifetime appointments of judges,"[t]he experience of Great Britain affords an illustrious comment onthe excellence of the institution."'5 3 British practice also supported theConstitution's division of power between House and Senate inimpeachment proceedings. After all, "[i]n Great Britain, it is theprovince of the house of commons to prefer the impeachment; and ofthe house of lords to decide upon it."'54

One high-visibility debate between federalists and antifederalistselicited from Publius a particularly close examination of Britishhistory. Critics of the Constitution had assailed its provision for two-year House terms by invoking a favorite slogan of the day-"thatwhere annual elections end, tyranny begins."'5 5 For Madison,however, "the degree of liberty retained even under septennialelections" in Great Britain left no doubt that two-year termspresented no danger of oppression.' Indeed, even during its mostrepublican episodes, Britain provided for elections no more frequentthan once every three years.1 7

In similar fashion, the history of the mother country undercutwidely voiced concerns about recognition of a congressional power to

150. THE FEDERALIST No. 56 (James Madison), supra note 14, at 382.151. THE FEDERALIST NO. 5 (John Jay), supra note 14, at 23-24.152. THE FEDERALIST No. 43 (James Madison), supra note 14, at 288.153. THE FEDERALIST No. 78 (Alexander Hamilton), supra note 14, at 530.154. THE FEDERALIST NO. 65 (Alexander Hamilton), supra note 14, at 440. British

experience also undercut complaints that a four-year term for the president was so lengthy thatit would lead to executive domination of the legislative branch. After all:

If a British House of Commons, from the most feeble beginnings ... have by rapidstrides, reduced the prerogatives of the crown and the privileges of the nobility ...while they raised themselves to the rank and consequence of a coequal branch of theLegislature... what would be to be feared from an elective magistrate of four yearsduration, with the confined authorities of a President of the United States?

THE FEDERALIST NO. 71 (Alexander Hamilton), supra note 14, at 485-86.155. THE FEDERALIST No. 53 (James Madison), supra note 14, at 359.156. THE FEDERALIST No. 52 (James Madison), supra note 14, at 356.157. Id.

2006]

DUKE LAW JOURNAL

maintain a standing army.' Following the defeat of King James II inthe Glorious Revolution, after all, the drafters of the English Bill ofRights had provided for keeping military forces in service "with theconsent of parliament."'59 Thus even "when the pulse of liberty was atits highest pitch, no security against the danger of standing armies wasthought requisite, beyond a prohibition of their being raised or keptup by the mere authority of the executive magistrate."' 6 It was atelling point that, on this score, "[t]he patriots, who effected thatmemorable revolution, were too temperate and too well informed, tothink of any restraint in the legislative discretion."' 61

3. State Experience. Publius bolstered his argument forratification by citing American, as well as British, history. Argumentsfrom state practice drew in part on the experiences of dysfunctionalinstitutions. Exclusive federal regulation of the currency, for example,found support in "the pestilent effects of paper money" circulated bystates whose "guilt... can be expiated [not] otherwise than by avoluntary sacrifice on the altar of justice, of the power which has beenthe instrument of it."'62 Rhode Island's past obstinacy in resistingreform of the federal taxing power supported "an irresistibleconviction of the absurdity of subjecting the fate of 12 States, to theperverseness or corruption of a thirteenth" in the constitutionalamendment process.63 Thus the Constitution properly required assentby only three-fourths of the states to amendments duly proposed byCongress.

In some instances, the essayists drew on state practice to craft afortiori arguments in support of the Constitution.'6M In response to thecontention that two-year House terms were too lengthy, for example,Madison pointed to the history of his own state. Although Virginiahad provided for seven-year election cycles at the time of the

158. THE FEDERALIST No. 26 (Alexander Hamilton), supra note 14, at 165-66.159. Id. at 166.160. Id.161. Id.162. THE FEDERALIST NO. 44 (James Madison), supra note 14, at 300.163. THE FEDERALIST No. 40 (James Madison), supra note 14, at 263.164. Notably, in just the first fifty-two pages of his classic treatment of The Federalist, Garry

Wills happens upon at least three a fortiori arguments based on state or British practice. SeeWILLS, supra note 28, at 43--44 (regarding the Constitution's ratio of representatives toconstituents); id. at 44 (regarding corruptibility and unresponsiveness of legislators); id. at 52(regarding the acceptability of imprecise limits on government powers).

[Vol. 56:469

THE FEDERALIST

Revolution, "the colony ... stood first in resisting the parliamentaryusurpations of Great-Britain," and "it was the first also in espousingby public act, the resolution of independence.' 6

1 It followed fromVirginia's experience with septennial elections "that the liberties ofthe people can be in no danger from biennial elections."' 6 The casefor two-year terms found support in another recent piece of state-sidehistory as well: the "iniquitous measures" propounded in RhodeIsland to protect local debtors had come from legislators who hadstood for election at six-month intervals.67

Publius repeatedly argued that what was good for the local gooseshould be good for the federal gander. Critics of the Constitution, forexample, complained that it would permit the federal government toimpose poll taxes. Hamilton retorted:

Every State in the Union has power to impose taxes of this kind ....Are the State governments to be stigmatised as tyrannies becausethey possess this power? If they are not, with what propriety can thelike power justify such a charge against the national government, or/ 168

even be urged as an obstacle to its adoption?

Some antifederalists questioned the wisdom of lifetime appointmentsfor federal judges,'69 but Publius defended this approach as"conformable to the most approved of the state constitutions. '

,170

Some critics decried the Constitution's blending of functions among

165. THE FEDERALIST No. 52 (James Madison), supra note 14, at 358.166. Id.167. THE FEDERALIST No. 63 (James Madison), supra note 14, at 423; see also THE

FEDERALIST No. 53 (James Madison), supra note 14, at 360 (observing that, despite each state'shalf-year terms of legislative office, "it would not be easy to shew that Connecticut or Rhode-Island is better governed, or enjoys a greater share of rational liberty than South-Carolina,"which had two-year terms). Even proposed rules that seemed inconsistent with state practicecould be made to look appealing through the creative logic of Publius. In The Federalist No. 39,Madison brushed aside attacks on six-year terms for senators even though not one state in 1787tolerated legislative service of this duration. AMAR, supra note 72, at 75 (noting that no statesenate term exceeded five years). A six-year term, Madison reasoned, is "but one year morethan the period of the Senate of Maryland; and but two more than that of the Senates of New-York and Virginia." THE FEDERALIST No. 39 (James Madison), supra note 14, at 252. Becausethe experience of those states had been distinctively positive, it followed that the six-year termwould be present no difficulties. Id.

168. THE FEDERALIST No. 36 (Alexander Hamilton), supra note 14, at 229.169. See THE FEDERALIST No. 78 (Alexander Hamilton), supra note 14, at 522 (noting that

this provision had "been drawn into question by the adversaries of [the] plan").170. Id.

2006]

DUKE LAW JOURNAL

the three branches of government.17' "If we look into the constitutionsof the several states," Madison replied, "we find that... there is not asingle instance in which the several departments of power have beenkept absolutely separate and distinct."'' Responding to attacks on thecongressional power to maintain a standing army, Hamilton notedthat the framers' proposed treatment of this subject corresponded "tothe general sense of America, as expressed in most of the existingconstitutions.173

Publius had to walk a tightrope in relying on state constitutionalpractice because he was not, by his own admission, "an advocate forthe particular organizations of the several state governments,' 174

whose constitutions bore "strong marks of the haste, and still strongerof the inexperience, under which they were framed."'75 Even so, thoseconstitutions exemplified "many excellent principles" that thePhiladelphia Convention had honored. 76 At the least, these chartersrevealed that few features of the new Constitution reflected wholesaleinnovations.

4. New York. At the outset of the project, Hamiltonemphasized to New Yorkers the "analogy to your own stateconstitution" of the proposed federal charter.177 Had the framerserred in failing to set a date for congressional and senatorialelections? If so, "it may be asked, why was not a time for the likepurpose fixed" in New York's Constitution?' 78 Was it wrong to let a

171. See, e.g., Brutus XIV, N.Y. J., Apr. 10, 1788, reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 18, at 442, 446 (asserting that "a branch of the legislature should not beinvested with the power of appointing officers" and that "[tihis power in the senate is veryimproperly lodged for a number of reasons"); Cato V, N.Y. J., Sept. 1787-Jan. 1788, reprinted in2 THE COMPLETE ANTI-FEDERALIST, supra note 18, at 116, 118 (decrying the Senate's role inappointments, impeachment trials, and treaty ratification).

172. THE FEDERALIST NO. 47 (James Madison), supra note 14, at 327.173. THE FEDERALIST NO. 24 (Alexander Hamilton), supra note 14, at 152. Pointing to a

particularly familiar episode of recent history, he added that the Revolution showed that statemilitias alone could not defend the nation; rather, a "regular and disciplined army" wasrequired. THE FEDERALIST No. 25 (Alexander Hamilton), supra note 14, at 162.

174. THE FEDERALIST NO. 47 (James Madison), supra note 14, at 331.175. Id.

176. Id.177. THE FEDERALIST NO. 1 (Alexander Hamilton), supra note 14, at 7 (emphasis omitted).178. THE FEDERALIST No. 61 (Alexander Hamilton), supra note 14, at 414. The answer to

this question, Hamilton continued, was that this "was a matter which might safely be entrustedto legislative discretion, and that if a time had been appointed, it might upon experiment havebeen found less convenient than some other time." Id.

[Vol. 56:469

THE FEDERALIST

president seek re-election? The governor of New York could seeknew terms of office "without limitation or intermission." 9 Did thenew Constitution create House districts too populous to allow votersto cast ballots wisely? "[T]he members of [the State] Assembly, forthe cities and counties of New-York and Albany, are elected by verynearly as many voters, as will be entitled to a representative in theCongress....", 80 In The Federalist No. 69, Hamilton compared theprerogatives of the president to those of the governor of New York(as well as governors of other states and the King of England). Thisanalysis ranged across the veto, military, pardon, legislative-adjournment, and appointment powers. After putting the distinctivelynational matter of treaty-making by the president to one side,Hamilton concluded that "it would be difficult to determine whetherthat Magistrate ... possess[es] more or less power than the Governorof New-York."'' Some antifederalists argued that a properconstitution would provide for polling in each county, 12 yet the NewYork Constitution provided for state senate elections "in the greatdistricts into which the State is or may be divided," which "atpresent ... comprehend each from two to six counties.'8.3 Here, aselsewhere, Publius argued that in comparing the two constitutions "itwill be impossible to acquit the one and to condemn the other."' 8'

What's more, any "similar comparison would lead to the sameconclusion in respect to the Constitutions of most of the otherstates.""'

Reliance on the past practices of New York reflected theauthors' attentiveness to the nature of their audience. So, too, did theauthors' insistence that the readers of their essays stood at a turningpoint in history. According to Publius, it had fallen to Americans "todecide ... whether societies of men are really capable or not, ofestablishing good government from reflection and choice. ... ,,186 With

179. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 14, at 463.180. THE FEDERALIST NO. 57 (James Madison), supra note 14, at 389.181. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 14, at 469; see also id. at

461-62 (noting that objections to the office and function of the vice president applied equally toNew York's lieutenant governor, who in similar fashion presided over the senate and assumedthe governorship upon the death of the state's chief magistrate).

182. THE FEDERALIST No. 61 (Alexander Hamilton), supra note 14, at 410-11.183. Id. at 411.184. Id. at 412.185. Id.186. THE FEDERALIST No. 1 (Alexander Hamilton), supra note 14, at 3.

20061

DUKE LA W JO URNAL

words of this kind, the authors of The Federalist urged their readersnot just to follow history, but to make it. The past had proven that theArticles of Confederation embodied a clumsy and shortsighted plan.The Constitution, in contrast, held the promise of creating a form ofgovernment "glorious... to mankind." '

C. Publius and Practical Reasoning

According to Publius, the capacity of Americans to heed "thesuggestions of their own good sense" was nothing less than "the gloryof the people.""8 Given this outlook, it is not surprising that theauthors of The Federalist often invoked "common sense" in makingthe case for the Constitution 8 9

Antifederalists, for example, excoriated the Constitution'screation of a sweeping congressional taxing power. According toPublius, however, practical Americans would understand the need forthis power because the United States would "experience a commonportion of the vicissitudes and calamities, which have fallen to the lotof other nations."'" Dreamers might see in America's future only"halcyon scenes of the poetic or fabulous age."1 91 But practical citizenswould prepare for the worst, including the prospect of costly wars thatwould present "dangers, to which no possible limits can beassigned.' 92 A new federal government-like any government-couldabuse the taxing power. Madison, however, counted on the "goodsense of the people of America" to perceive that "in every politicalinstitution, a power to advance the public happiness, involves adiscretion which may be misapplied."'93 To be sure, antifederalist

187. THE FEDERALIST No. 36 (Alexander Hamilton), supra note 14, at 230.188. THE FEDERALIST No. 14 (James Madison), supra note 14, at 88.189. The term "common sense" appears in THE FEDERALIST No. 5 (John Jay), supra note

14, at 24; THE FEDERALIST No. 22 (Alexander Hamilton), supra note 14, at 139; THEFEDERALIST No. 29 (Alexander Hamilton), supra note 14, at 185; THE FEDERALIST NO. 31(Alexander Hamilton), supra note 14, at 194; THE FEDERALIST No. 83 (Alexander Hamilton),supra note 14, at 559, 560; THE FEDERALIST No. 84 (Alexander Hamilton), supra note 14, at583. The term "good sense" is used in THE FEDERALIST No. 14 (James Madison), supra note14, at 87, 88; THE FEDERALIST No. 30 (Alexander Hamilton), supra note 14, at 190; THEFEDERALIST No. 41 (James Madison), supra note 14, at 268; THE FEDERALIST No. 70(Alexander Hamilton), supra note 14, at 474; THE FEDERALIST No. 85 (Alexander Hamilton),supra note 14, at 591.

190. THE FEDERALIST No. 30 (Alexander Hamilton), supra note 14, at 193.191. Id.192. THE FEDERALIST No. 31 (Alexander Hamilton), supra note 14, at 195-96.193. THE FEDERALIST No. 41 (James Madison), supra note 14, at 268-69.

[Vol. 56:469

THE FEDERALIST

"rhetoric and declamation... may inflame the passions of theunthinking."' 9 Citizens who were "cool and candid," however, wouldsee that these critics had "chosen rather to dwell on theinconveniences which must be unavoidably blended with all politicaladvantages" to be gained from a much-strengthened federalgovernment.9

Common sense combined with common experience to reveal theflaws of the Articles of Confederation. The Articles, for example,rested in part on the idea that Congress should direct its commands atstate legislatures (rather than at individuals) because "breaches, bythe States, of the regulations of the federal authority were not to beexpected .... "'96 But why was that? Logic cut down the notion that aspirit of rightfulness more often characterizes "bodies of men... thanindividuals"; 97 indeed, groups of persons were in general moreundeserving of trust than particular individuals because concern forreputation "has a less active influence, when the infamy of a badaction is to be divided among a number .... ",,98 What is more,common sense suggested that groups of persons who took the form ofa state would be distinctly prone to disobey federal commandsbecause "there is in the nature of sovereign power an impatience ofcontroul" that conflicts with the inclination to honor duties owed to alarger confederation."

According to Publius, some antifederalist arguments departed sofar from sound reasoning that they qualified as "extravagant. ' ' °

Skeptics worried, for example, that a federal power to mobilize localmilitias would lead the central government to overwhelm Americanliberties. Hamilton's reply drew on his readers' personal knowledgeof state militia members:

Where in the name of common sense are our fears to end if we maynot trust our sons, our brothers, our neighbours, our fellow-citizens?What shadow of danger can there be from men who are daily

194. Id. at 269.195. Id.196. THE FEDERALIST NO. 15 (Alexander Hamilton), supra note 14, at 96.197. Id.198. Id.199. Id.200. THE FEDERALIST No. 29 (Alexander Hamilton), supra note 14, at 185.

2006]


mingling with the rest of their countrymen; and who participate withthem in the same feelings, sentiments, habits and interests?21

According to Madison, "little critics" had raised a raft of "imaginary"concerns,02 including the particularly far-fetched suggestion that thenew government might forgo the collection of debts rightfully owedto the nation under the Articles of Confederation. 3 The Constitution,Madison acknowledged, did not specify in terms that obligationsowed to the federal government would survive ratification. But "noreal danger can exist that the government would DARE ... to remitthe debts justly due to the public, on the pretext here condemned." 204

The reasoning of Publius often involved the drawing ofdeductions from incontestable principles. Ultimate congressional(rather than state) power to oversee the manner of congressionalelections, for example, rested on the "plain proposition, that everygovernment ought to contain in itself the means of its ownpreservation., 20 Could a loosely organized collection of autonomousstates properly manage the national debt? No, because "there isnothing men differ so readily about as the payment of money." 26

201. Id.202. THE FEDERALIST No. 43 (James Madison), supra note 14, at 295-96.203. This argument stemmed from the Constitution's specification that debts owed by the

United States under the Articles of Confederation would persist under Article VI of theConstitution. One of the "lesser criticisms" of the Constitution was that the omission from thisclause of any treatment of debts owed to the United States might imply the extinguishment ofsuch debts under the interpretive rule expressio unius est exclusio alterius. See id. at 295 ("[I]thas been remarked that the validity of engagements ought to have been asserted in favour of theUnited States, as well as against them;.., the omission has been transformed and magnifiedinto a plot against the national rights.").

204. Id. at 296. In similar fashion, Hamilton lambasted Cato's suggestion that the presidentcould make appointments to fill vacancies in the Senate during congressional recesses. Thisargument ignored Article I's "clear and unambiguous" delegation of this power to statelegislatures, or to state governors "during the recess of the [I]egislature." THE FEDERALIST No.67 (Alexander Hamilton), supra note 14, at 456 (emphasis omitted). Cato's argument, Hamiltonconcluded, was "destitute ... even of the merit of plausibility" and "must have originated in anintention to deceive the people." Id. at 456-57.

205. THE FEDERALIST No. 59 (Alexander Hamilton), supra note 14, at 398 (emphasisomitted).

206. THE FEDERALIST No. 7 (Alexander Hamilton), supra note 14, at 42 (adding that"[t]here is perhaps nothing more likely to disturb the tranquility of nations, than their beingbound to mutual contributions for any common object, which does not yield an equal andcoincident benefit").

THE FEDERALIST

Madison also blasted away at critics for applying principles "tocases to which the reason of them does not extend."2 7 Someantifederalists, for example, faulted the framers for failing to requireperiodic conventions to review and revise the federal Constitution.These critics reasoned that, because past state constitutionalconventions had unfolded in a productive and harmonious manner,there could be no harm in holding periodic federal conventions goinginto the future. Madison responded that the temperance exhibited atearlier state conventions cast no light because each of them hadoccurred during the Revolutionary War. This fact was all-importantbecause:

[T]he existing constitutions were formed in the midst of a dangerwhich repressed the passions most unfriendly to order and concord;of an enthusiastic confidence of the people in their patriotic leaders,which stifled the ordinary diversity of opinions on great nationalquestions; of a universal ardor for new and opposite forms,produced by a universal resentment and indignation against theantient government; and whilst no spirit of party, connected with thechanges to be made, or the abuses to be reformed, could mingle itsS208

leven in the operation.

According to Madison, not one of these background conditions waslikely to exist with respect to any future federal convention."8 Thusthe "situations in which we must expect to be usually placed" inupcoming years would not "present any equivalent security" againstfactional cacophony and immoderation.1

207. THE FEDERALIST No. 53 (James Madison), supra note 14, at 359. In a similar vein,Hamilton and Madison sometimes challenged antifederalist contentions on the ground thatembracing them would produce the very evils those arguments sought to avoid. Did it makesense for antifederalists to object to the Constitution because it authorized a federal standingarmy? No, because the very disunion they advocated would inevitably lead to such widespreadhostilities among neighboring states that large local standing armies would emerge. THEFEDERALIST No. 8 (Alexander Hamilton), supra note 14, at 45-46.

208. THE FEDERALIST No. 49 (James Madison), supra note 14, at 341.209. Id.210. Id. Similarly, as we have seen, antifederalists argued against two-year congressional

terms by invoking the slogan that "where annual elections end, tyranny begins." THEFEDERALIST No. 53 (James Madison), supra note 14, at 359. But this slogan had come fromBritain, where members of Parliament had gone so far as to extend their terms from three toseven years, adding four years to the term for which they were elected. Id. at 361. The maximwas therefore "wholly inapplicable to our case," because the new Constitution fixed two-yearterms as the supreme law of the land unalterable in any way except by constitutionalamendment. Id. at 360.

2006]

DUKE LA W JO URNAL

The authors of The Federalist often resorted to the multiprongedattack. In The Federalist No. 57, for example, Madison offered fiveseparate reasons why House members would seldom betray thepublic trust even if they worked far from home: (1) voters wouldtypically elect deserving representatives; (2) widely shared valueswould induce most representatives to act with honor and gratefulnesstoward their constituents; (3) even undeserving representatives wouldseek approbation out of self-interest; (4) frequent elections wouldprovide a strong measure of accountability; and (5) the "fulloperation" of federal laws on the elected representatives themselveswould mitigate dangers of abuse."' Not to be outdone, Hamiltonoffered five reasons of his own against the imposition of presidentialterm limits. He argued that (1) removing the possibility of re-electionwould negate a powerful "inducement[] to good behaviour"; (2)avaricious or ambitious presidents would be spurred to abuse theiroffice for personal gain if faced with the prospect of "descend[ing]from the exalted eminence forever"; (3) term limits would "depriv[e]the community of the advantage of the experience gained by the chiefmagistrate in the exercise of his office"; (4) emergencies might call forthe leadership of "particular men" who, because of prior service,would be barred from office; and (5) constantly changing theoccupant of the "first office in the nation" would interfere with thestability of government.

21 2

Lawyers learn that facts persuade, and this working principlepervades The Federalist. Some antifederalists argued, for example,that the poor attendance records of members of the ConfederationCongress cut against further empowering a government for a territoryas expansive as the United States.23 Hamilton responded that pastattendance problems sprang from the impotence of theConfederation government, rather than geographic dispersal.214 Anydoubt in this regard fell victim to the fact that "members from themost distant States are not chargeable with greater intermissions of

211. THE FEDERALIST No. 57 (James Madison), supra note 14, at 385-87.212. THE FEDERALIST NO. 72 (Alexander Hamilton), supra note 14, at 488-91.213. See THE FEDERALIST No. 14 (James Madison), supra note 14, at 85 ("[Tjhe natural

limit of a republic is that distance from the center, which will barely allow the representatives ofthe people to meet as often as may be necessary for the administration of public affairs.").

214. Id.

[Vol. 56:469

THE FEDERALIST

attendance, than those from the States in the neighbourhood ofCongress. '

In The Federalist No. 38, Madison used facts drawn from theArticles of Confederation itself to rebut a host of challenges directedat the new Constitution:

Is an indefinite power to raise money dangerous in the hands of afederal government? The present Congress can make requisitionsto any amount they please; and the States are constitutionally boundto furnish them; they can emit bills of credit as long as they will payfor the paper; they can borrow both abroad and at home, as long asa shilling will be lent. Is an indefinite power to raise troopsdangerous? The Confederation gives to Congress that power also;and they have already begun to make use of it. Is it improper andunsafe to intermix the different powers of government in the samebody of men? Congress, a single body of men, are the soledepository of all the fcederal powers. Is it particularly dangerous togive the keys of the treasury, and the command of the army, into thesame hands? The Confederation places them both in the hands ofCongress. Is a Bill of Rights essential to liberty? The Confederationhas no Bill of Rights. Is it an objection against the new Constitution,that it empowers the Senate with the concurrence of the Executiveto make treaties which are to be the laws of the land? The existingCongress, without any such controul, can make treaties which theythemselves have declared, and most of the States have recognized,

216to be the supreme law of the land.

Citing these points, Madison asked how sensible citizens could resistratification when "most of the capital objections urged against thenew system, lie with tenfold weight against the existingConfederation. , 217

This is not to say that all of Publius's arguments themselvesreflected good sense."' Hamilton, for example, erred in predicting

215. Id. And even if that evidence did not suffice, Hamilton added, in the near future"intercourse throughout the union will be daily facilitated by new improvements" made toroads, canals, and natural waterways. Id. at 86-87.


217. Id.218. In particular, the Papers did contain a number of simple errors. See, e.g., Roy P.

Fairfield, Introduction to THE FEDERALIST PAPERS, at v, xxv (Roy P. Fairfield ed., 2d ed. 1966)(noting Publius's "misquoting of the Declaration, Constitution, Montesquieu, and othersources"); Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material forConstitutional Interpretation, 105 W. VA. L. REV. 601, 603-14 (2003) (noting imprecision or

2006]

DUKE LAW JOURNAL

that the prohibition on appropriations to support military forces formore than two years would in practice provide a "powerful guard"against congressional maintenance of standing armies."' History alsohas discredited his suggestion in The Federalist No. 66 that therequirement of the origination of revenue bills in the House wouldfall among the "important counterpoises" to senatorial power. °

(After all, senators can easily induce sympathetic House colleagues topropose appropriations bills, and both chambers must enact thesebills, regardless of where they originate.221 )

Worst of all, Publius occasionally managed to shoot himself inthe foot. Responding to fears that federal taxing authority woulddisrupt state revenue collections, for example, Hamilton predictedthat soon "the wants of the States will naturally reduce themselveswithin a very narrow compass., 222 A moment's reflection reveals thatthis argument had a self-defeating quality, for patrons of state powerhardly wanted to hear that they need not worry about dampened taxcollections because soon the states would have no meaningful powersat all! 23 Missteps of this kind did not occur often in The Federalist. Tothe extent they did, the essayists could take some comfort in the

error in Publius's treatment of the size of the legislature, the quorum needed in the Senate, themanner of selecting the vice-president, and the manner of selecting the president).

219. THE FEDERALIST NO. 24 (Alexander Hamilton), supra note 14, at 155. Hamilton'ssuggestion that legislators are subject to impeachment, see THE FEDERALIST NO. 60 (AlexanderHamilton), supra note 14, at 450-51, has been rejected, as has his countertextual claim thatremoval (as well as appointment) of executive officers would require Senate consent. See, e.g.,RAKOVE, supra note 34, at 350 (documenting Hamilton's change of mind, upon his candidacyfor Secretary of Finance, regarding the necessity of Senate consent for removal of executiveofficers).

220. THE FEDERALIST No. 66 (Alexander Hamilton), supra note 14, at 448.

221. See also AMAR, supra note 72, at 107 (noting that the Origination Clause had "littlebite" because "the Senate would enjoy unlimited power to propose amendments").

222. THE FEDERALIST No. 34 (Alexander Hamilton), supra note 14, at 210.223. Little less curious was Hamilton's treatment of peace treaties in The Federalist No. 22.

There, he complained of the Articles' supermajority voting requirements, voicing concern thatsuch requirements would invite "bribes and intrigues" from foreign powers to "tie up the handsof government from making peace, where two thirds of all the votes were requisite to thatobject." THE FEDERALIST No. 22 (Alexander Hamilton), supra note 14, at 142. To be sure, thenew Constitution did not require treaty confirmation of two-thirds of all the states-just two-thirds of the "Senators present." U.S. CONST. art. II, § 2. Even so, given the Constitution's ownsupermajority requirement, Hamilton's assault on this feature of the Articles smacked ofproving too much.

[Vol. 56:469

THE FEDERALIST

excuse that they had no choice but to turn out their work at abreakneck pace." '

A final rhetorical technique, which runs throughout the Papers,subtly bolstered Publius's appeals to reason. Illustrative wasMadison's assertion in The Federalist No. 43 that the unamendablenature of the two-senators-per-state clause "was probably meant as apalladium to the residuary sovereignty of the States,... and wasprobably insisted on by the States particularly attached to thatequality.""22 In reality, of course, Madison was not confined toreporting what "probably" happened in Philadelphia.226 He hadactually been there, and he knew exactly what had transpired. Thewriters who had taken on the name of Publius, however, had reasonnot to disclose anything like a personal stake in the constitutionalproject born of their own past labors. Indeed, in defending theConstitution's structuring of government, Publius himself made use ofthe maxim that "[n]o man ought certainly to be a judge ... in anycause in respect to which he has the least interest or bias., 227 As aresult, the voice of The Federalist took on the tone of a trustworthyand omniscient neutral, marked by a rhetorical detachment calculatedto contribute to the credibility of the overall project.22s

D. The Wisdom of Compromise

In keeping with appeals to common sense, the authors of TheFederalist often stressed the need for practical accommodation.

224. See David McGowan, Ethos in Law and History: Alexander Hamilton, The Federalist,and the Supreme Court, 85 MINN. L. REV. 755, 852 (2001) (adverting to Hamilton's erroneousand later-retracted assertion in No. 77 that the Senate must approve presidential removals, aswell as appointments, of executive officers; adding that "under the burden of the series as awhole, his law practice, and his general politicking..., he simply got caught up in responding toparticular anti-federalist arguments and momentarily lost the forests in the trees"-something"[tihat can happen, even to a Hamilton or a Madison").

225. THE FEDERALIST NO. 43 (James Madison), supra note 14, at 296.226. But cf THE FEDERALIST NO. 37 (James Madison), supra note 14, at 237 (purporting to

extrapolate what "must have been" and what one "may well suppose" happened at thePhiladelphia Convention); THE FEDERALIST No. 40 (James Madison), supra note 14, at 265(opining on what the delegates "must have reflected," "must have recollected," and "must haveborne in mind").

227. THE FEDERALIST NO. 80 (Alexander Hamilton), supra note 14, at 538; accord THEFEDERALIST No. 10 (James Madison), supra note 14, at 59.

228. See WILLIAM LEE MILLER, THE BUSINESS OF MAY NEXT 165 (1992) (noting that thestyle of Hamilton and Madison rendered each of them a "pretended outsider" to theConvention); WILLS, supra note 28, at 22 (describing the persona of Publius as that of an"impartial judge").

2006]

DUKE LAW JOURNAL

Publius, for example, did not try to convince New Yorkers that equalrepresentation of the states in the Senate was a good idea. Instead,Madison acknowledged in The Federalist No. 62 that this feature ofthe Constitution was "evidently the result of compromise between theopposite pretensions of the large and the small states ,

22' reached in a

setting where "neither side would entirely yield to the other., 23m Ever

the pragmatist, he added that "[a] government founded on principlesmore consonant to the wishes of the larger states, is not likely to beobtained from the smaller states.""23 Thus, "the advice of prudence"counseled that New York should accept the deal offered by theConstitution while it still lay on the table. 32

Publius took much the same approach in defending the infamousThree-Fifths Compromise, under which slaves were treated as afractional part of a person for purposes of allocating House seats.Hamilton, an ardent abolitionist, could not bring himself to write onthis topic. Madison, however, addressed it in The Federalist No. 54,urging that, even though southern arguments for the three-fifthsapproach were "a little strained in some points," this "compromisingexpedient of the Constitution [should] be mutually adopted." 3

Political realities dictated other outcomes as well. Theappointment of senators by state legislatures, though not Publius'spreferred approach, embodied the selection method "most congenialwith the public opinion";2" thus, even if it operated as "aninconvenience," this methodology had been adopted "for theattainment of a... greater good., 235 Madison also recoiled at theConstitution's approach to voter eligibility, under which the franchisein federal elections varied from locale to locale, depending on eachstate's qualification standards for elections to its own larger legislativechamber.236 Nonetheless, he urged patience with this approachbecause the better option of a uniform nationwide rule "would


230. THE FEDERALIST No. 37 (James Madison), supra note 14, at 237.231. THE FEDERALIST No. 62 (James Madison), supra note 14, at 416-17.

232. Id. at 417.233. THE FEDERALIST No. 54 (James Madison), supra note 14, at 371, 369.234. THE FEDERALIST No. 62 (James Madison), supra note 14, at 416.235. THE FEDERALIST NO. 59 (Alexander Hamilton), supra note 14, at 401.

236. See U.S. CONST. art. I, § 2, cl. 1 ("[Tjhe Electors in each State shall have theQualifications requisite for Electors of the most numerous Branch of the State Legislature.").

[Vol. 56:469

THE FEDERALIST

probably have been... dissatisfactory to some of the States" and"difficult to the Convention."

237

In all these cases, according to Madison, "the Convention musthave been compelled to sacrifice theoretical propriety to the force ofextraneous considerations." '238 The document now before the peoplewas not a constitution planned by "an ingenious theorist.., in hiscloset or in his imagination., 239 It was less than ideal because"compacts which are to embrace thirteen distinct states.., must...be a compromise of ... many dissimilar interests and inclinations.""Yet, "[i]f mankind were to resolve to agree in no institution ofgovernment, until every part of it had been adjusted to the most exactstandard of perfection, society would soon become a general scene ofanarchy, and the world a desert., 21

1

In a similar vein, Publius acknowledged that highly principledjustifications could not be identified for many of the lines drawn inthe Constitution. How often should elections occur? The properinterval of time "does not appear to be susceptible of any precisecalculation., 24 2 How many representatives should represent how manypeople? Again, the problem is not "susceptible of a precise solution";in fact, there is no "point on which the policy of the several states ismore at variance., 24'3 How long should a person have citizenshipbefore qualifying to run for the Senate? Who knows? But nine years''appears to be a prudent mediocrity between a total exclusion ofadopted citizens... and hasty admission of them, which might createa channel for foreign influence., 2" How many states should jointogether in ratifying a constitutional amendment proposed by two-thirds of the House and of the Senate? Three-quarters of the statesseemed about the right number in order to guard "equally againstthat extreme facility which would render the Constitution too

237. THE FEDERALIST No. 52 (James Madison), supra note 14, at 354.238. THE FEDERALIST No. 37 (James Madison), supra note 14, at 237.239. Id. at 238.240. THE FEDERALIST No. 85 (Alexander Hamilton), supra note 14, at 591.241. THE FEDERALIST No. 65 (Alexander Hamilton), supra note 14, at 444. For this reason,

Hamilton argued in The Federalist No. 65 that "[t]o answer the purpose of the adversaries of theConstitution, they ought to prove, not merely, that particular provisions in it are not the best,which might have been imagined; but that the plan upon the whole is bad and pernicious." Id. at444-45.

242. THE FEDERALIST No. 52 (James Madison), supra note 14, at 355.243. THE FEDERALIST No. 55 (James Madison), supra note 14, at 373.244. THE FEDERALIST No. 62 (James Madison), supra note 14, at 415-16.

2006]

DUKE LAW JOURNAL

mutable; and that extreme difficulty which might perpetuate itsdiscovered faults., 245

These points demonstrated that the framers had sought earnestlyto find fair accommodations among the welter of proposals putforward at the Convention.246 In The Federalist No. 38, Publius soughtto build on this theme by turning antifederalist objections to thefederalists' advantage. The following passage (much longer in itsentirety) catches the flavor of the argument:

An objector in a large State exclaims loudly against theunreasonable equality of representation in the Senate. An objectorin a small State is equally loud against the dangerous inequality inthe house of representatives. From this quarter we are alarmed withthe amazing expence from the number of persons who are toadminister the new Government. From another quarter, andsometimes from the same quarter, on another occasion, the cry isthat the Congress will be but the shadow of a representation, andthat the Government would be far less objectionable, if the numberand the expence were doubled. A patriot in a State that does notimport or export, discerns insuperable objections against the powerof direct taxation. The patriotic adversary in a State of great exportsand imports, is not less dissatisfied that the whole burden of taxesmay be thrown on consumption.... In the eyes of one the junctionof the Senate with the President in the responsible function ofappointing to offices, instead of vesting this executive power in theexecutive, alone, is the vicious part of the organization. To another,the exclusion of the house of representatives whose numbers alonecould be a due security against corruption and partiality in theexercise of such a power, is equally obnoxious. With another, theadmission of the President into any share of power which must everbe a dangerous engine in the hands of the executive magistrate, is an

241unpardonable violation of the maxims of republican jealousy.

Madison's point was not only that the self-contradictory nature ofantifederalist objections revealed their shaky foundations. The deeperpoint was that the framers already had navigated with extraordinaryskill a middle course among the very clutter of criticisms now lodged

245. THE FEDERALIST No. 43 (James Madison), supra note 14, at 296.246. See, e.g., THE FEDERALIST No. 65 (Alexander Hamilton), supra note 14, at 443 (noting

that, for presidential impeachments, given a choice between Senate trials and trials before ajoint session of the Senate and the Supreme Court, the framers picked "perhaps the prudentmean"-trial in the Senate with the Chief Justice presiding).

247. THE FEDERALIST No. 38 (James Madison), supra note 14, at 244-45.

[Vol. 56:469

THE FEDERALIST

against the constitutional proposal. In all of this, there was a deeperpoint still: Hamilton, Madison, and Jay stood ready to discuss openlythe Constitution's shortcomings and, in doing so, to build a bridge ofcandor to their readers to reinforce the credibility of their largerproject.

One curiosity of the Federalist Papers is that they defend manyconstitutional provisions that Hamilton or Madison had condemnedat the Philadelphia Convention. Hamilton, for example, gave aninfamous Convention speech, later used to tar him as a monarchist, inwhich he advocated life terms for both presidents and senators. 4s Asif to reaffirm the extremity of his views, Hamilton reported to hisfellow delegates in one of the last speeches of the Convention that"[n]o man's ideas were more remote from the plan than his own wereknown to be. 2 49 At the Convention, Madison also advocated manyideas that never found their way into the Constitution. He had been,for example, an unsuccessful advocate of proportionaterepresentation in the Senate, of unimpeded federal authority torestrict the slave trade, and of a congressional power to veto statelaws. 5°

Cynics might cite these points in arguing that The Federalist has adisingenuous quality. Perhaps so. But one might also view the essaysthrough another prism-with the thought that the project may wellhave brought new clarity to these former Convention delegates.5 '

One senses in reading the essays that Hamilton and Madison hadcome to grasp at a deeper level the intricacies of the document, thesubtlety of its themes, the careful balances it struck, and the neatnesswith which its provisions fit together. At the very least, the writing ofthe Federalist Papers must have heightened the authors' awareness ofthe framers' extraordinary practical achievement. From a crazy quiltof conflicting personal, regional, and theoretical positions, the

248. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 289 (Max Farrand ed.,rev. ed. 1937) (setting forth Madison's notes, which describe Hamilton's speech of June 18before the Convention: "Let one branch of the Legislature hold their places for life" and "[lietthe Executive also be for life").

249. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 11, at 645-46.250. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 248, at 151.251. See, e.g., ALBERT FURTWANGLER, THE AUTHORITY OF PUBLIUS 147 (1984)

(suggesting that drafting triggered a "dynamic" process in the "two strong minds" of Publius);WILLS, supra note 28, at 93 (noting that Hamilton critiqued the Constitution before it wasfinalized, had the benefit of learning what was "realizable" in the ratification controversy, andmay have experienced "real changes of mind between his [Convention] speech and thecomposition of The Federalist").

2006]

DUKE LAW JOURNAL

Philadelphia Convention had forged a coherent treatment ofgovernment creatively designed to meet the new nation's needs.Publius knew that "a faultless plan was not to be expected., 252 Forsensible Americans, it would suffice "that the system, though it maynot be perfect in every part, is upon the whole a good one, is the bestthat the present views and circumstances of the country will permit,and is such a one as promises every species of security which areasonable people can desire." 5

E. Imagery and Metaphor

Hamilton, Madison, and Jay knew well that few readers wouldpore over intricate arguments set forth in arid prose. As a result,Publius laced the tracts with imagery, symbolism, and color.254

Metaphor surfaced often. A strong federal Supreme Court wasneeded because "[t]hirteen independent courts of final jurisdiction...is a hydra.., from which nothing but contradiction and confusion canproceed. '255 There was "poison" in antifederalist arguments.256 It wastime to "break the fatal charm which has too long seduced us fromthe paths of felicity and prosperity." '257

Hamilton, in particular, delighted in this style of rhetoric andused it with frequency in castigating his adversaries. The writings ofantifederalist critics, he observed in The Federalist No. 8, suggestedthat "airy phantoms ... flit before [their] distemperedimaginations. 258 In The Federalist No. 29 he added that:

In reading many of the publications against the Constitution, a manis apt to imagine that he is perusing some ill written tale or romance;which instead of natural and agreeable images exhibits to the mindnothing but frightful and distorted shapes.. discoloring and

252. THE FEDERALIST No. 37 (James Madison), supra note 14, at 232; see CHERNOW, supranote 8, at 246 (adding that "all the delegates at Philadelphia had adopted the final document ina spirit of compromise" and then "approached it as a collective work and championed it as thebest available solution").

253. THE FEDERALIST No. 85 (Alexander Hamilton), supra note 14, at 590.254. See generally Philip Abbott, What's New in the Federalist Papers?, 49 POL. RES. Q. 525,

528 (1996) (emphasizing Publius's "excellence as a storyteller").255. THE FEDERALIST No. 80 (Alexander Hamilton), supra note 14, at 535.256. THE FEDERALIST No. 14 (James Madison), supra note 14, at 88.

257. Id. at 92.258. THE FEDERALIST NO. 8 (Alexander Hamilton), supra note 14, at 49-50.

[Vol. 56:469

THE FEDERALIST

disfiguring whatever it represents and transforming every thing ittouches into a monster.259

Hamilton's use of metaphor reached full flower in The FederalistNo. 9, when he observed that ancient republics, even when built ondemocratic principles, had encountered only "furious storms.' '2

' °

History offered hope because "stupendous fabrics reared on the basisof liberty" had "in a few glorious instances" provided models forAmerica.21' Even so:

If-now and then intervals of felicity open themselves to view, webehold them with a mixture of regret arising from the reflection thatthe pleasing scenes before us are soon to be overwhelmed by thetempestuous waves of sedition and party-rage. If momentary rays ofglory break forth from the gloom, while they dazzle us with atransient and fleeting brilliancy, they at the same time admonish usto lament that the vices of government should pervert the directionand tarnish the lustre of those bright talents and exaltedindowments, for which the favoured soils, that produced them, have

262been so justly celebrated.

Hamilton's purple prose supported a conclusion also captured inmetaphorical terms: Americans must abandon the localized model ofdemocratic self-rule to build "the broad and solid foundation" onwhich "permanent monuments" to republican liberty could rise up.263

Madison was drawn to allegory. In The Federalist No. 37, forexample, he took on antifederalist grumbling about the difficulty ofdefining the precise reach of state and federal powers. "The mostsagacious and laborious naturalists," Madison explained, "have neveryet succeeded, in tracing with certainty, the line which separates thedistrict of vegetable life from the neighboring region of unorganizedmatter, or which marks the termination of the former and thecommencement of the animal empire."2 6' Madison's message was hardto miss: Just as surely as students of natural science should notabandon biological classifications because of the difficulty of the task,

259. THE FEDERALIST No. 29 (Alexander Hamilton), supra note 14, at 185-86.260. THE FEDERALIST No. 9 (Alexander Hamilton ), supra note 14, at 50.261. Id. at 51.262. Id. at 50-51.263. Id. at 51.264. THE FEDERALIST No. 37 (James Madison), supra note 14, at 235.

2006]

DUKE LA W JO URNAL

patrons of political science had to tolerate some measure ofimprecision in laying down the boundary lines of power.265

In The Federalist No. 38, Madison again turned to allegory toattack the litany of small criticisms leveled by antifederalist objectors.He explained that:

No man would refuse to quit a shattered and tottering habitation,for a firm and commodious building, because the latter had not aporch to it; or because some of the rooms might be a little larger orsmaller, or the cieling [sic6 a little higher or lower than his fancywould have planned them.I

Madison drove home the point with the parable of the strickenman. Called by a dying patient, a group of physicians (who werecarefully selected by him because of their distinguishedaccomplishments) unanimously agreed on a course of treatment.Then, another group of doctors appeared on the scene. Withblustering self-assurance, each of them challenged their colleagues'proposed plan, insisting to the patient that it would "poison... hisconstitution. '

,2' Drawing on this story to attack antifederalist

natterers, Madison posed two telling questions:

Might not the patient reasonably demand before he ventured tofollow this advice, that the authors of it should at least agree amongthemselves, on some other remedy to be substituted? and if hefound them differing as much from one another, as from his firstcounsellors, would he not act prudently, in trying the experimentunanimously recommended by the latter, rather than in hearkeningto those who could neither deny the necessity of a speedy remedy,nor agree in proposing one? 269

Publius's use of imagery in portraying America's present state-as "apoor pitiful figure" 70 situated at "the point of extremedepression ""'-went far in suggesting to wavering New Yorkers thatthey needed to think hard about a change of national direction. And

265. See id. (recounting that "[e]xperience has instructed us that no skill in the science ofGovernment has yet been able to discriminate and define, with sufficient certainty, its threegreat provinces, the Legislative, Executive and Judiciary").

266. THE FEDERALIST No. 38 (James Madison), supra note 14, at 246-47.

267. Id. at 242-43.268. Id. at 243.

269. Id.

270. THE FEDERALIST No. 4 (John Jay), supra note 14, at 23.271. THE FEDERALIST No. 6 (Alexander Hamilton), supra note 14, at 35.

[Vol. 56:469

THE FEDERALIST

the imagery employed in describing America's unrealized potential-as a nation forged in a "common bond of amity,, 272 united by "theaffection of friends, 273 and "not heated by the local flame" '274-bespoke the wisdom of embracing the much-strengthened centralgovernment proposed by the new Constitution. In all of this, Publiussought to render more graphic and more gripping the reasonedarguments for ratification around which The Federalist was built.

F. Appeals to Emotion

The essence of The Federalist lay in its presentation ofrelentlessly logical arguments in an "elevated and philosophicaltone., 275 The authors, however, sought to appeal to the heart as wellas to the head. They did so, most of all, by characterizing in heatedlyunflattering terms their antifederalist adversaries, as well as thecontentions those adversaries advanced.

Some antifederalist arguments involved overreaches thatexposed their authors to obvious attack. In The Federalist No. 27, forexample, Hamilton mocked the suggestion that only military troopscould enforce federal law as resting "on mere general assertion;unsupported by any precise or intelligible designation of...reasons." 17 6 In The Federalist No. 29, he was no less dismissive ofantifederalist predictions that the proposed new government wouldinevitably abuse its military powers. As he wrote:

At one moment there is to be a large army to lay prostrate theliberties of the people; at another moment the militia of Virginia areto be dragged from their homes five or six hundred miles to tamethe republican contumacy of Massachusetts; and that ofMassachusetts is to be transported an equal distance to subdue therefractory haughtiness of the aristocratic Virginians. Do the persons,who rave at this rate, imagine, that their art or their eloquence canimpose any conceits or absurdities upon the people of America forinfallible truths? 277

272. THE FEDERALIST NO. 84 (Alexander Hamilton), supra note 14, at 591.273. THE FEDERALIST No. 43 (James Madison), supra note 14, at 294.

274. Id.275. James W. Ducayet, Note, Publius And Federalism: On the Use and Abuse of The

Federalist in Constitutional Interpretation, 68 N.Y.U. L. REV. 821, 852 (1993); see RAKOVE,supra note 34, at 132 (describing the "lucidity and cool rationality" of The Federalist).

276. THE FEDERALIST No. 27 (Alexander Hamilton), supra note 14, at 171.277. THE FEDERALIST No. 29 (Alexander Hamilton), supra note 14, at 186.

2006]

DUKE LAW JOURNAL

Madison denigrated those who detected a grant of unlimitedregulatory powers in the General Welfare Clause, which by its clearterms concerned only the federal taxing and spending authority. "Nostronger proof could be given of the distress under which thesewriters labour for objections," he exclaimed, "than their stooping tosuch a misconstruction. ''

171 In essence, the authors of The Federalist

kept asking: Who can believe such critics? "A bad cause seldom failsto betray itself," Madison wrote in The Federalist No. 41, adding that"[o]f this truth, the management of the opposition to the FederalGovernment is an unvaried exemplification. 2 79

Challenges to the credibility of antifederalist writers sometimesshaded into more aggressive forms of attack. Antifederalist objectionsto lifetime judicial appointments, for example, showed "the rage forobjection which disorders their imaginations and judgments."'

Concern expressed about oppression at the hands of federallycontrolled state militias was "so far fetched.., that one is at a losswhether to treat it with gravity or with raillery.""2 ' To Madison,antifederalist arguments "must appear to every one more like theincoherent dreams of a delirious jealousy, or the misjudgedexaggerations of a counterfeit zeal, than like the sober apprehensionsof genuine patriotism."' Critics who expounded self-evidentlystrained positions had to be acting out of self-serving pettiness, if not"magnificent schemes of personal aggrandizement." 3

In effect, Hamilton, Madison, and Jay sought to "double dip" ontheir invocations of history and reason. After laying out an argumentsaid to be unanswerable by "men of discernment,"'2 8 they would askhow that argument could be rejected by anyone not driven by "apredetermination to condemn,, 28

' a "distempered jealousy,, 26

278. THE FEDERALIST No. 41 (James Madison), supra note 14, at 277.279. Id. at 274.280. THE FEDERALIST No. 78 (Alexander Hamilton), supra note 14, at 522.281. THE FEDERALIST No. 29 (Alexander Hamilton), supra note 14, at 185.282. THE FEDERALIST No. 46 (James Madison), supra note 14, at 321.283. THE FEDERALIST NO. 22 (Alexander Hamilton), supra note 14, at 145. In The

Federalist No. 9, the unrelenting Hamilton suggested why antifederalists might advocate asystem of atomized states in separate subconfederacies. "[Tihe multiplication of petty offices,"he observed, might "answer the views of men, who possess not qualifications to extend theirinfluence beyond the narrow circles of personal intrigue." THE FEDERALIST NO. 9 (AlexanderHamilton), supra note 14, at 53.

284. THE FEDERALIST No. 31 (Alexander Hamilton), supra note 14, at 195.285. THE FEDERALIST NO. 37 (James Madison), supra note 14, at 232.286. THE FEDERALIST No. 59 (Alexander Hamilton), supra note 14, at 399.

[Vol. 56:469


"obstinacy, perverseness or disingenuity, ' or "politicalfanaticism. '

,21 Could expressions of concern about the central

government's oppression of the citizenry with state militias trulyreflect "the sober admonitions of discerning patriots to a discerningpeople?"'2 89 More likely, they were "the inflammatory ravings ofchagrined incendiaries or distempered enthusiasts., 29

0 For Hamilton,expressions of concern about a standing army smacked of scare tactics"unfriendly to an impartial and right determination."' 9' "[A] man ofcalm and dispassionate feelings," Hamilton opined, "would indulge asigh for the frailty of human nature; and would lament that in amatter so interesting to the happiness of millions the true merits ofthe question should be perplexed and entangled by [these]expedients.

',292

Publius did not hesitate to suggest that antifederalist contentionsreflected "disingenuous artifice,"'2 93 "false impressions,"" "politicallegerdemain, 2 95 and the "exaggerated colours ofmisrepresentation. ' 96 Hamilton, Madison, and Jay questionedwhether antifederalists were "sincere in their opposition, 29' and urgedreaders to consider whether opposing essayists were so driven by an"imprudent zeal, 29 that they might seek "to instill prejudices at anyprice."2 In all of this there was irony, for Publius had both professed

287. THE FEDERALIST NO. 31 (Alexander Hamilton), supra note 14, at 195.288. THE FEDERALIST No. 29 (Alexander Hamilton), supra note 14, at 185. In The

Federalist No. 29, after obliterating the contention that federal authorities could not deputizecitizens for law enforcement purposes, Publius asked: "What shall we think of the motives whichcould induce men of sense to reason in this manner?" Id. at 183; accord THE FEDERALIST No.31 (Alexander Hamilton), supra note 14, at 195 ("How else could it happen.., that positions soclear as those which manifest the necessity of a general power of taxation in the government ofthe union, should have to encounter any adversaries... ?").

289. THE FEDERALIST NO. 29 (Alexander Hamilton), supra note 14, at 186-87.290. Id. at 187.291. THE FEDERALIST NO. 24 (Alexander Hamilton), supra note 14, at 155.

292. Id.293. THE FEDERALIST NO. 29 (Alexander Hamilton), supra note 14, at 185.294. THE FEDERALIST NO. 9 (Alexander Hamilton), supra note 14, at 54.

295. THE FEDERALIST NO. 36 (Alexander Hamilton), supra note 14, at 227.296. THE FEDERALIST NO. 33 (Alexander Hamilton), supra note 14, at 204; see THE

FEDERALIST No. 24 (Alexander Hamilton), supra note 14, at 154 (warning of "an experimentupon the public credulity, dictated either by a deliberate intention to deceive or by theoverflowings of a zeal too intemperate to be ingenuous").

297. THE FEDERALIST NO. 31 (Alexander Hamilton), supra note 14, at 195.298. THE FEDERALIST NO. 33, (Alexander Hamilton), supra note 14, at 206.299. THE FEDERALIST NO. 29, (Alexander Hamilton), supra note 14, at 185.

DUKE LA W JO URNA L

at the outset an intention to appeal only to "the genuine and soberdictates"3°° of the reader's judgment and chided other essayists for"the bitterness of their invectives."30' In his concluding essay,Hamilton went so far as to congratulate himself on the temperance hehad displayed in taking on critics of the Constitution:

I trust at least you will admit, that I have not failed in the assurance Igave you respecting the spirit with which my endeavours should beconducted. I have addressed myself purely to your judgments, andhave studiously avoided those asperities which are too apt todisgrace political disputants of all parties .... '02

Then, touching the edges of self-contradiction, Hamilton added:

The charge of a conspiracy against the liberties of the people, whichhas been indiscriminately brought against the advocates of the plan,has something in it too wanton and too malignant not to excite theindignation of every man who feels in his own bosom a refutation ofthe calumny.... And the unwarrantable concealments andmisrepresentations which have been in various ways practiced tokeep the truth from the public eye, have been of a nature to demandthe reprobation of all honest men.

Perhaps Hamilton, Madison, and Jay could not resist the urge todecry political opponents whose own writings brimmed with"unhallowed language,"3°4 "virulent invective,"" and "petulantdeclamation."3" This was an era, after all, in which one writer mightdescribe another as a "monkey,"3 °7 a "blockhead,"3" or even among"the 'meanest traitors that ever dishonoured the human character." '3°

In a lamentably low moment, the essayist Inspector had dubbedHamilton "Tom Shit" (the actual spelling was "Tom S-t") and


301. THE FEDERALIST No. 1 (Alexander Hamilton), supra note 14, at 5.302. THE FEDERALIST No. 85 (Alexander Hamilton), supra note 14, at 589.303. Id.


305. THE FEDERALIST No. 33 (Alexander Hamilton), supra note 14, at 204.306. Id.307. DE PAUW, supra note 17, at 100 (quoting one writer's barb that "[a] monkey has more

unexceptionable claim to reason" (quoting A Friend to Common Sense, N.Y. J., Dec. 18, 1787)).308. Id. (quoting comment by "Examiner" that "[a]s to that sniveling blockhead,

Democritus, his drunken performance does not indeed merit a reply" (quoting Examiner III,N.Y. J., Dec. 18, 1787)).

309. BERNARD BAILYN, To BEGIN THE WORLD ANEW 107 (2003).

[Vol. 56:469

THE FEDERALIST

described him as a mixed-race "mustee" who had "quitted [his] nativesoil in the torrid zone."3 ' Faced with vilification of this sort,Hamilton-not surprisingly-confessed to moments in which"moderation itself can scarcely listen to the railings which have beenso copiously vented ... without emotions that disturb itsequanimity." '' And to such remarks, he added the telling clincherthat, if the line of proper discourse had been crossed, the wrong hadoccurred "neither often nor much., 312

It may be that Publius lashed out at antifederalist adversariesbecause natural human feelings of resentment left no choice. It maybe that, as Hamilton stated in defense of his most heated rhetoric,explicit accusations of antifederalist mendacity were necessary to help''sincere lovers of their country" conduct a "fair and candidexamination" of the Constitution.313 A broad-gauged look at TheFederalist, however, suggests that another motive was at work.Through a constancy of aspersion tied to reasoned argument, Publiussowed the seeds of skepticism at a visceral level. By portrayingantifederalists as dark-hearted as well as wrong-headed, Hamilton,Madison, and Jay appealed to deep-seated human sensibilities tied topride, caution, resentment, indignation, and even self-preservation. Itis hardly surprising that, in pursuing their project of persuasion, theauthors of The Federalist should draw on forces rooted so deeply inthe human psyche.

The Federalist's emotional appeal for ratification had a positive,as well as a negative, edge. In particular, The Federalist's authorsaligned the Constitution, its framers, and its defenders with the spiritof the American Revolution and the intellectual forces that had given

310. CHERNOW, supra note 8, at 245. Mindful of these excesses, Albert Furtwangleremphasized "the consistent high tone" of The Federalist. FURTWANGLER, supra note 251, at 81;see also id. at 75 (asserting that Publius "practiced severe restraint"); id. at 81-82 (claiming thatPublius's work "served as a damper on the violence of the ratification debate" and "shows threeimportant writers laboring to assert calm reason"); id. at 97 (arguing that "the authority ofPublius is strong because of his high civility"). Particularly in the context of a tempestuous time,this depiction has some accuracy. Moreover, it would be wrong to suppose that name-callingpervades The Federalist, most of which is given over to logical examination of relevant subjects.Even so, the appellations collected in the text-and many others too-counsel caution incharacterizing The Federalist in terms as unequivocal as Furtwangler employs.

311. THE FEDERALIST NO. 33 (Alexander Hamilton), supra note 14, at 204.312. THE FEDERALIST No. 85 (Alexander Hamilton), supra note 14, at 589.313. See THE FEDERALIST No. 24 (Alexander Hamilton), supra note 14, at 155 (referring to

arguments that the Constitution did not prevent standing armies in peace time as "clamours"and "dishonest artifices of a sinister and unprincipled opposition").

20061

DUKE LAW JOURNAL

it birth. Their essays cited the Declaration of Independence" ' and itsgreat author, Thomas Jefferson.315 The heroes of Americanindependence had "accomplished a revolution which has no parallel

,,316 Pin the annals of human society, and Publius portrayed theConstitution as the logical continuation of that revolutionary process.As Madison put the point in The Federalist No. 14, for a people boldand ingenious enough to break the chains of British oppression, "[i]tis only to be lamented, that any of her citizens should wish to depriveher of the additional merit of displaying" the "full efficacy" ofrepublican self-rule. 17

Like the Revolution, the Constitution would draw Americanstogether: "[T]he mingled blood which [Americans] have shed indefence of their sacred rights, consecrate their union, and excitehorror at the idea of their becoming aliens, rivals, enemies.""3 ' Likethe Revolution, the Constitution would promote ideals far removedfrom the petty interests that marked America's experience under theArticles of Confederation. "Was... the hard earned substance ofmillions lavished, not that the people of America should enjoy peace,liberty and safety; but that the Governments of the individualStates ... [might] be arrayed with certain dignities and attributes ofsovereignty? '"319 And like the Revolution, the Constitution was rootedin a selfless collaboration of fearless and far-sighted patriots. Indeed,the Philadelphia Convention had brought together "some of the mostdistinguished members of [the Revolutionary Congress of 1774], whohave been since tried and justly approved for patriotism andabilities. ,320

314. See, e.g., THE FEDERALIST No. 40 (James Madison), supra note 14, at 265 (arguing forthe right to "abolish or alter" the government (quoting the Declaration of Independence)).

315. See, e.g., THE FEDERALIST No. 48 (James Madison), supra note 14, at 335 (discussingJefferson's constitutional efforts in Virginia).


317. Id. at 84-85.318. Id. at 88.


320. THE FEDERALIST No. 2 (John Jay), supra note 14, at 12. Jay went so far as to suggestthat the Philadelphia Convention was rightly viewed as the second coming of the "MemorableCongress of 1774." Id. at 11. As with the work of the Convention, the proposals of that"Patriotic Congress" had caused "the Press ... to teem with Pamphlets and weekly Papersagainst [its] measures" even though time had "proved their wisdom." Id. Both assemblies had

brought together men "convened from different parts of the country," id., who gave themselves

over for an extended period to a process of "mature deliberation," id. at 12. Indeed, "some ofthe most distinguished members of [the 1774] Congress... who have grown old in acquiring

political information, were also members of this Convention." Id. Thus, "if the people at large

[Vol. 56:469


It is of interest that the names of Washington and Franklinappear in none of the eighty-five essays. Even so, the stature of theseluminaries and their fellow framers overhung all that Publius wrote."'In The Federalist No. 37, Madison recalled that "[t]he history ofalmost all the great councils and consultations, held among mankindfor reconciling their discordant opinions ... is a history of factions,contentions, and disappointments; and may be classed among themost dark and degrading pictures which display the infirmities anddepravities of the human character. ' In contrast, the PhiladelphiaConvention had cast a "lustre to darken the gloom." '323 Drawing onthe image of the selfless patriot, Madison proclaimed that "all thedeputations composing the Convention, were either satisfactorilyaccommodated by the final act; or were induced to accede to it, by adeep conviction of the necessity of sacrificing private opinions andpartial interests to the public good."32 '

Publius made use of America's revolutionary heritage in avariety of ways. For example he assured readers that, although theConstitution included novel elements, citizens who had pressed arevolution to success should not hesitate to embrace "what is new. '3 25

Many innovations had been "displayed on the American theatre,"

had reason to confide in the men of that Congress, few of whom had then been fully tried orgenerally known, still greater reason have they now to respect the judgment and advice of theConvention." Id. Notably, the very idea of a constitution coming forth from a convention was arevolutionary innovation. In the past, Madison explained, the task of framing a government hadfallen to "some individual citizen of pre-eminent wisdom and approved integrity"-like Minosof Crete, Lycurgus of Sparta, or Romulus of Rome. THE FEDERALIST No. 38 (James Madison),supra note 14, at 240. The very different mode of the proceeding in Philadelphia reflected an"improvement made by America," and it underscored the singularity of the Convention'sachievement. Id. at 241. This achievement, according to Madison, was all the greater becausethere was no "want of ... care in the investigation" conducted by the assembled delegates. Id.

So it was because those gathered had recognized "that the hopes and expectations of the greatbody of citizens, throughout this great empire, were turned with the keenest anxiety, to theevent of their deliberations." THE FEDERALIST No. 40 (James Madison), supra note 14, at 264.

321. The competence of the Philadelphia delegates was unquestionably broad and deep. AsCatherine Drinker Bowen has written:

Nearly three-fourths [of the delegates] had sat in the Continental Congress. Manyhad been members of their state legislatures and had helped to write their stateconstitutions in the first years after Independence. Eight had signed the Declaration,seven had been state governors, twenty-one had fought in the Revolutionary War.When Jefferson in Paris read the names he said it was "an assembly of demi-gods."

BOWEN, supra note 47, at 4.322. THE FEDERALIST No. 37 (James Madison), supra note 14, at 238.

323. Id. at 239.324. Id.


DUKE LAW JOURNAL

and it was "the glory of the people of America" to eschew "a blindveneration for antiquity. 32 6 In The Federalist No. 11, Hamilton soughtto build support for the Constitution by tapping into optimisticnotions of American ascendancy and uniqueness. Disunion, headmonished, would vindicate the "arrogant pretensions of theEuropean" that had "tempted her to plume herself as the Mistress ofthe World, and to consider the rest of mankind as created for herbenefit., 327 It had fallen to America to rise above the station of long-oppressed Asians and Africans and to "vindicate the honor of thehuman race., 328 Hamilton's words crackled with patriotic fervor:

Let Americans disdain to be the instruments of European greatness!Let the thirteen States, bound together in a strict and indissolubleunion, concur in erecting one great American system, superior to thecontroul of all trans-atlantic force or influence, and able to dictatethe terms of the connection between the old and the new world!3 29

The Federalist's celebration of the Revolution also helped allayconcerns about the purported unlawfulness of the PhiladelphiaConvention.33 ° One problem arose from the fact that the Constitutionwould take effect upon approval by only nine states, even though theArticles of Confederation in express terms conditioned theirmodification on unanimous state action.3 ' Another problem existedbecause the Confederation Congress had directed delegates to meet"for the sole and express purpose" of proposing modifications to the

326. Id.327. THE FEDERALIST No. 11 (Alexander Hamilton), supra note 14, at 72.328. Id. at 72-73.329. Id. at 73.330. See generally THE FEDERALIST NO. 40 (James Madison) (discussing this subject at

length). The debate on whether the ratification was, strictly speaking, legal continues to this day.Compare Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment OutsideArticle V, 94 COLUM. L. REV. 457, 458 (1994) (arguing that the founding was legal because itwas rooted in popular sovereignty), with Bruce Ackerman & Neal Katyal, Our UnconventionalFounding, 62 U. CHI. L. REV. 475, 476 (1995) (rejecting the idea that the founding was"consummately legal"), and Henry Paul Monaghan, We The People[s], Original Understanding,and Constitutional Amendment, 96 COLUM. L. REV. 121, 121 (1996) (characterizing Amar'sargument as "appealing, but historically groundless").

331. Compare ARTS. OF CONFEDERATION art. XIII ("[N]or shall any alteration at any timehereafter be made in any of [the Articles of this Confederation]; unless such alteration beagreed to in a Congress of the United States, and be afterwards confirmed by the legislatures ofevery State."), with U.S. CONST. art. VII ("The Ratification of the Conventions of nine States,shall be sufficient for the Establishment of this Constitution between the States so ratifying theSame.").

[Vol. 56:469

THE FEDERALIST

Articles of Confederation, and not for the purpose of proposing anentirely new charter of government.332 Responding to critiques basedon these facts, Madison focused on the same principle of "absolute[]necess[ity]" that had spawned the American Revolution.333 ForPublius, the "law of nature and of nature's God" dictated "the greatprinciple of self-preservation" and required abandonment of politicalinstitutions at odds with "the safety and happiness of society." '' ThePhiladelphia delegates, much like the heroes of the Revolution, hadencountered "a system so radically vicious and unsound" that it didnot "admit... of amendment" but instead required "an entire changein its leading features and characters. "" The "peculiarlydistinguished" leaders who gathered in Philadelphia thus chose thepath of not "sacrificing substance to forms," but instead of "exercisinga manly confidence in their country, by... pointing out a systemcapable in their judgment of securing its happiness. 33 6 Like theRevolution, this action reflected the "patriotic emotion" of the"virtuous citizen. ,11

7 "[I]f [the framers] had exceeded their powers,"Publius concluded in The Federalist No. 40, they were-just like theleaders of a decade before-"required, as the confidential servants oftheir country, by the circumstances in which they were placed, toexercise the liberty which they assumed., 33

According to Publius, the Constitution was properly aligned notonly with the spirit of the Revolution but with the views of greatphilosophers who helped spur revolutionary thinking. The essayistscited thinkers such as Grotius, Mably, and Hume, noting withEnlightenment-era enthusiasm that "[t]he science of politics... likemost other sciences has received great improvement" over time.339

Publius also relied on contemporary writers like Blackstone"0 and the

332. THE FEDERALIST No. 40 (James Madison), supra note 14, at 259.333. Id. at 264.334. THE FEDERALIST No. 43 (James Madison), supra note 14, at 297.335. THE FEDERALIST No. 22 (Alexander Hamilton), supra note 14, at 144-45.336. THE FEDERALIST NO. 40 (James Madison), supra note 14, at 266.337. Id.338. Id. at 267.339. THE FEDERALIST NO. 9 (Alexander Hamilton), supra note 14, at 51.340. See THE FEDERALIST No. 69 (Alexander Hamilton), supra note 14, at 465, 467 (citing

Blackstone in footnote); THE FEDERALIST No. 84 (Alexander Hamilton), supra note 14, at 577(citing the "judicious Blackstone").

2006]

DUKE LAW JOURNAL

English essayist Junius.34 ' The authors of The Federalist, however,heaped their most lavish attention on the writings of the Frenchpolitical philosopher Montesquieu, who had developed and defendedthe notion of separated governmental powers in his masterpiece, TheSpirit of Laws."2 In challenging the proposed Constitution,antifederalists trumpeted this work, extracting from it the idea thatrepublican governments stood no chance of success except in smallgeographical settings.343 In The Federalist No. 9, Hamilton sought todebunk this reading of Montesquieu, thus aligning the name of thegreat political philosopher with the work of the PhiladelphiaConvention.' n

Did an even higher authority support the case for ratification?Jay wrote in The Federalist No. 2 that "it appears as if it was thedesign of Providence, that [this] band of brethren, united to eachother by the strongest ties, should never be split into a number ofunsocial, jealous and alien sovereignties.""34 Hamilton could not bringhimself to urge that God had taken sides in the ratification debate,346

but Madison seemed ready to make the case. In The Federalist No. 37,he first celebrated the solidarity and success of the Philadelphia

341. See THE FEDERALIST No. 70 (Alexander Hamilton), supra note 14, at 479 (citing the"celebrated Junius").

342. See THE FEDERALIST NO. 9 (Alexander Hamilton), supra note 14, at 53-54 (quotingMontesquieu at length); THE FEDERALIST No. 43 (James Madison), supra note 14, at 295(quoting Montesquieu on the "advantages of a confederate republic" in quelling insurrection).For background information about many of the authors Publius cites, see generally Robert G.Natelson, The Constitution and the Public Trust, 52 BuFF. L. REV. 1077, 1095-136 (2004).

343. See, e.g., Brutus I, N.Y. J., Oct. 18, 1787, reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 18, at 363, 368 (quoting Montesquieu's Spirit of Laws on theadvantages of a small republic); Cato III, N.Y. J., Oct. 25, 1787, reprinted in 2 THE COMPLETEANTI-FEDERALIST, supra note 18, at 109, 110 (same). Storing believes Publius was respondingspecifically to Cato's invocation of Montesquieu. 2 THE COMPLETE ANTI-FEDERALIST, supranote 18, at 127 n.ll (editorial note).

344. See THE FEDERALIST No. 9 (Alexander Hamilton), supra note 14, at 53-54 (quotingMontesquieu's advocacy of reforms "by which smaller States agree to become members of alarger one," and thus arguing that his writings "contain luminous abridgement of principalarguments in favour of the Union").

345. THE FEDERALIST NO. 2 (John Jay), supra note 14, at 9.346. So it was even though the New Yorker apparently was, in some fashion, a religious

man. See CHERNOW, supra note 8, at 132 (noting that "Eliza never doubted her husband'sfaith," although "Hamilton refrained from a formal church affiliation"); see also id. at 205(adding that, although Hamilton "did not seem to attend church regularly," he probablyembraced deism and "never doubted God's existence"). See generally Douglass Adair & MarvinHarvey, Was Alexander Hamilton a Christian Statesman?, reprinted in ALEXANDER HAMILTON230 (Jacob E. Cooke ed., 1967).

[Vol. 56:469

THE FEDERALIST

Convention in the face of overwhelming odds. Then he turned to thebroader theme:

It is impossible for any man of candor to reflect on thiscircumstance, without partaking of ... astonishment. It is impossiblefor the man of pious reflection not to perceive in it, a finger of thatAlmighty hand which has been so frequently and signally extendedto our relief in the critical stages of the revolution. 47

III. JUDICIAL RELIANCE ON THE FEDERALIST

The preceding account reveals that The Federalist embodies astrategic argument designed to win an intense political campaign. Thishistorical fact raises a question of pressing contemporary significance:How does the argumentative nature of the essays affect the legitimacyof relying on them as a source of modern-day constitutionalinterpretation?

The question is timely for two reasons. First, in recent decadesthe Supreme Court has invoked The Federalist with far greaterfrequency than in earlier time periods; indeed, as Professor Ira Lupudocuments, "[m]ore than half of all the Supreme Court decisions inwhich one or more citations to The Federalist appear have beenrendered since 1970. ''

14s Second, in a bevy of recent scholarly writings,

commentators have grappled with the question whether the courtshave any business consulting The Federalist as they search forconstitutional meaning."9 Not surprisingly, some observers argue thatthe essays should carry little interpretive freight precisely because ofthe key point developed in this paper namely, that The Federalistwas a highly argumentative and politically motivated document.These analysts contend that it is unsound to seek the Constitution's

347. THE FEDERALIST NO. 37 (James Madison), supra note 14, at 238.348. Lupu, supra note 5, at 1330.349. See generally Ducayet, supra note 275; William N. Eskridge, Jr., Should the Supreme

Court Read The Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301(1998); John F. Manning, Textualism and the Role of The Federalist in ConstitutionalAdjudication, 66 GEO. WASH. L. REV. 1337 (1998); J. Michael Martinez & William D.Richardson, The Federalist Papers and Legal Interpretation, 45 S.D. L. REV. 307 (2000);McGowan, supra note 224; Tillman, supra note 218.

2006]

DUKE LAW JOURNAL

meaning by consulting what was at worst "propaganda""35 and at best"political advocacy., 351

Critiques of this kind, while understandable, tend to oversimplifyanalysis, in part because there are different theories about why courtsmay use The Federalist to help resolve constitutional ambiguities. Inparticular, various observers posit five significant arguments insupport of judicial reliance on the Papers. According to thesetheories, judicial use of The Federalist properly reflects (1) theiriconic status; (2) their utility as "legislative history"; (3) theirdictionary-like character; (4) their function as learned commentary;and (5) their embodiment of exceptionally wise insights about thesound functioning of government. Any fair consideration of TheFederalist's role in constitutional interpretation must take account ofeach of these approaches, and I undertake such an evaluation in thepages that follow. I offer this evaluation only as a tentative account ofmy still-developing views of this complex subject. Even thispreliminary account suggests, however, that adherents of all fivetheories have much work to do in reconciling their positions with theargumentative purpose of The Federalist. Nonetheless, in the end,that purpose does not preclude judicial reliance on the essays. In fact,in one important way, the authors' purpose of persuasion reinforcesthe case that courts should make use of The Federalist in resolvinghard questions of constitutional law.

A. The Federalist as Icon

The first argument for the propriety of judicial use of Publius'swritings is the most straightforward. According to this theory, TheFederalist stands at the heart of our legal culture. It is celebrated. It isrevered. It is the subject of grade school social studies and high schoolcivics classes. How can it possibly be so the argument goes thatcourts should not consider in the process of constitutionalinterpretation a text that is almost as basic to American law as theConstitution itself? It is simply unthinkable, on this view, that courtscould ignore a legal text of such iconic status.52

350. Eskridge, supra note 349, at 1309.351. Manning, supra note 349, at 1339 (adding that the essays' contents thus "may at times

reflect the exigencies of debate").352. For one variation of this argument, see Manning, supra note 349, at 1355 n.69

(discussing The Federalist's "canonical status" and possibility of its legitimate use as aninterpretive tool because it has "become an important part of a long-standing constitutional

[Vol. 56:469

THE FEDERALIST

The difficulty with this argument is that many things are icons.Elvis is an icon. The American Flag is an icon. The work ofShakespeare is an icon. But neither Elvis nor the Flag norShakespeare tells us anything about the meaning of the Constitution.The obvious response to these observations is that The Federalist is anicon that specifically concerns the Constitution. But so what? TheFederalist may be an icon that concerns the Constitution for reasonsthat provide it with no serious claim to legitimacy as a source ofconstitutional interpretation. Its fame might result primarily from anemotional sense of connection to its celebrated (indeed, iconic)authors. Or its glory might stem especially in light of itsargumentative purpose from its association with the great victoryachieved in securing ratification of the Constitution. These thingsmight make The Federalist an icon, but they do not make it a properindicator of constitutional meaning.

In fairness, much of the rhetoric that concerns and supports TheFederalist's celebrated stature does suggest, at least at first blush, thatit is a valuable wellspring of constitutional information. Chief JusticeJohn Marshall, for example, described the essays as "a completecommentary on our [C]onstitution,"'' and Justice Samuel Chaseattributed to Publius "extensive and accurate knowledge of the trueprinciples of Government. 354 These Justices, however, neverconsidered the critical question whether the argumentative nature ofThe Federalist undermines its status as a sound source ofconstitutional meaning. Even more important, the Supreme Court asa whole has never considered in explicit terms this now-familiar lineof attack. In essence, writers like Chief Justice Marshall and JusticeChase do little more than assume the conclusion that The Federalistmerits attention in interpreting the Constitution.

In the end, the argumentative nature of The Federalist threatensits claim as an authoritative source as to the meaning of theConstitution. The reason why is simple: It is hard to say that TheFederalist sets forth an authoritative elaboration of the Constitution,

culture"). See also Ducayet, supra note 275, at 821 (noting that "The Federalist has long enjoyeda talismanic status in American constitutional interpretation" and that courts "start from thepremise that [the Papers) are vested with a special kind of power to help resolve issues ofconstitutional meaning"); id. at 856 (suggesting that, because "The Federalist occupies animportant position within American political culture," a proper theory of interpretation "oughtto account for [it] in some fashion").

353. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 418 (1821).354. Calder v. Bull, 3 U.S. (3 Dall.) 386, 391 (1798).

20061

DUKE LAW JOURNAL

when its purpose was not to set forth such an elaboration, but insteadwas to achieve a political objective of generating popular support forthe Constitution and the election of proratification delegates. Manyforms of advocacy, after all, are precisely the sorts of materials thatjudges would never cite as useful touchstones of textual meaning. Forexample, great briefs might be filed in constitutional cases, and greatoral presentations might be delivered, too. Yet the Supreme Courtwould not give authoritative legal status to Thurgood Marshall'sargument in Brown v. Board of Education or to Clarence Darrow'sspeeches at the Scopes Trial, even though those addresses haveachieved iconic status. Even more to the point, it is almostunimaginable that courts charged with ascribing meaning to a legaltext would rely on partisan campaign literature and one-sided lettersto the editor. Yet these labels apply readily to The Federalist Papers.For these reasons, it is eminently sensible to wonder why the moderncourt, in discharging its interpretive mission, should give attention towritings that embody "a brief in favor of ratification," '355 and thatreflect to use Madison's own words "the zeal of advocates"?3 56

There may be a good answer to this question. But it does not sufficeto say, without more, that The Federalist has a towering stature.

B. The Federalist as Legislative History

A more nuanced defense of The Federalist has its roots in thelongstanding practice of considering background legalmaterials such as committee reports and floor debates in ascribingmeaning to ambiguous legal texts. The idea behind the considerationof such materials is that the touchstone of interpretation should bethe intention of the lawgivers; thus, if the text of the law itself isambiguous, courts may consider statements made in the lawgivingprocess by or on behalf of the lawgivers to clarify what theirintentions were.57 Building on this thought, some analysts suggest thatThe Federalist should count in constitutional interpretation because itqualifies as a form of legislative history. The argument begins with theidea that the intentions of the ratifiers, rather than those of the

355. Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND.L.J. 759, 765 n.25 (1994).

356. Letter from James Madison to Edward Livingston (Apr. 17, 1824), in 9 THE WRITINGSOF JAMES MADISON 187, 189 (Gaillard Hunt ed., 1910).

357. See John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 419 (2005)(describing the historical use of legislative intent in judicial opinions).

530 [Vol. 56:469


Philadelphia framers, provide the decisive source of constitutionalmeaning because it was the ratifiers who brought the Constitution tolife.5 8 It thus follows, as Professor Amar has written, that courts maycite the essays because they "were consciously quoted and used morethan any other source during the ratification period." '359

There are major difficulties with this line of analysis. Onedifficulty is that some judges and commentators Justice Scalia mostprominently among them do not believe that it is ever legitimate toconsider legislative history in interpreting statutes. 36

' Adherents ofthis position rely in part on the artificiality of ascribing a unitaryintent to the diverse body of representatives who constitute alegislative majority. 6' This argument applies a fortiori toconstitutional interpretation because it is necessarily more difficult todiscern the intention of thirteen deliberative bodies than to discernthe intention of a single legislature. For analysts who think like

358. See 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 11, at 374(presenting opinion of James Madison that the proposed Constitution "was nothing more thanthe draft of a plan, nothing but a dead letter, until life and validity were breathed into it by thevoice of the people, speaking through the several State Conventions"); Letter from JamesMadison to Thomas Ritchie (Sept. 15, 1821), in 3 THE RECORDS OF THE FEDERAL

CONVENTION OF 1787, supra note 11, at 447, 447-48 (noting that the "legitimate meaning" ofthe Constitution must be derived either in the text or "in the sense attached to it by the peoplein their respective State Conventions," not "in the opinions or intentions of the Body whichplanned & proposed the Constitution").

359. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1498 n.285(1987). A variation on this argument is that, even if the intentions of Philadelphia framers areparamount, The Federalist provides strong evidence of their intentions because Madison andHamilton were present at the Convention and participated in its work. See, e.g., Ducayet, supranote 275, at 841-42. This history-of-the-writing theory suffers from even more problems thanthe history-of-the-ratification approach discussed in the ensuing text, in part because it isdoubtful that the Philadelphia framers' intentions should count for much of anything inconstitutional exegesis. See supra note 358. Even if their intentions do count, however, it isquestionable whether The Federalist provides a very good account of what those intentionswere. See Ducayet, supra note 275, at 845-47. In part this is the case because of theargumentative nature of the essays; after all, adoption of an argumentative purpose meant that"the work was not intended as a recapitulation of the convention deliberations." Id. at 845(emphasis added).

360. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION 29-37 (1997) (explainingJustice Scalia's rationale for disfavoring legislative history).

361. See, e.g., Frank H. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7HARV. J.L. & PUB. POL'Y 87, 92 (1984) (noting that "the most humble judge will fail if given acharge to recreate in his own mind the 535 minds that contemplated yesterday's problems").

362. See Eskridge, supra note 349, at 1308 (asserting that "[i]f the collective 'intent' of thebicameral legislature is an incoherent concept,.., the collective 'understanding' of an entirenation during a constitutional moment must be even more so"). There are other reasons as wellfor viewing constitutional history with more skepticism than legislative history. See, e.g., id. at


Justice Scalia, it follows easily that courts may not cite The Federaliston the theory that it qualifies as legislative (or, more accurately,constitutional) history.363

Even for those who endorse the use of legislative history, effortsto rely on The Federalist raise profound problems. It is now settled asa historical matter, for example, that the Papers did not circulatewidely outside New York.36 How, then, can they provide legislativehistory for the ratification conventions as a whole?3 65 In addition,ratification had already occurred in most of the states before many ofthe essays (including Hamilton's famous treatments of the judicialpower) were even published.3" How can the essays provide legislativehistory for official action that in fact predated their appearance?Finally, historians have concluded that the Papers had little impact onthe ratification decision even in New York.367 It is difficult, if notincoherent, to view Publius's work as legislative history when "[t]hereis no good evidence that anyone, even in New York, relied on TheFederalist as the basis for voting to ratify."3"

These problems greatly complicate the case for citing TheFederalist on a legislative-history theory. Perhaps the two greatest

1311 (noting that Congress might direct corrective legislation at judicial misreadings of statutesbased on manipulations of legislative history, but cannot cure similar manipulations in theconstitutional context; also worrying that reliance on constitutional history from the foundingperiod ignores postratification amendments that profoundly altered key themes of theConstitution). But see id. at 1316-21 (suggesting a possible case for continued use ofconstitutional, but not legislative history: Exclusion of legislative history but not constitutionalhistory may properly respond to modern-day interests groups' strategic creation of legislativematerials to facilitate later arguments to judges, which in turn distorts the deliberativelawmaking process).

363. See SCALIA, supra note 360, at 38 (stating that the "original meaning of the text" isparamount, not "what the original draftsmen intended").

364. See DE PAUW, supra note 17, at 111 n.25 (finding no record of publication in seven ofthe states and that "no more than twelve" of the essays appeared in newspapers outside ofBoston and Philadelphia).

365. See Eskridge, supra note 349, at 1309 (noting that "[n]o historian has rigorouslyestablished that the arguments [in The Federalist] were known and accepted in any other state,or even for that matter in New York"); Manning, supra note 349, at 1340 (finding no evidencethat ratifiers agreed with the "intricate and often-lengthy essays"); id. at 1355 (questioningwhether a "constitutionally sufficient number of ratifiers" were influenced by The Federalist,given the Papers' limited circulation).

366. FURTWANGLER, supra note 251, at 19-21.367. See McGowan, supra note 224, at 756 (noting overwhelming election of antifederalist

delegates in New York and the key role of Virginia's acceptance of the Constitution, rather thanof The Federalist, in triggering New York's ratification).

368. Id.; see also Ducayet, supra note 275, at 846 (noting these and additional problems withthe legislative-history account).

THE FEDERALIST

difficulties in doing so, however, spring from the argumentativecharacter of the work. The first problem is that Hamilton, Madison,and Jay did not write or publish the essays in the context oflawmaking operations. Rather, in keeping with their overarching planto present an argument to voters, they penned the tracts forpublication as newspaper editorials. As others have observed, it isdifficult to view materials written wholly outside the legislativeprocess as legislative history.369

Second, even assuming the essays could surmount this hurdle,they may well not rank as the sort of legislative history that deservessignificant respect. Courts have long recognized that different formsof legislative history merit different levels of judicial attention,3 70 andin applying this principle there is much reason not to give the TheFederalist high legislative-history marks. For example, Hamilton andMadison's project of persuasion led them to defend ideas with whichthey themselves disagreed. 7' It seems odd to say that, even whendocuments are crafted so strategically that they do not reflect theirown authors' outlook, they can nonetheless qualify as an officialexpression of a body of lawgivers on whose behalf those authorssomehow supposedly spoke.

C. The Federalist as Dictionary

As we have seen, Justice Scalia strongly rejects the use oflegislative history in interpreting enacted materials.372 How, then, canhe routinely cite The Federalist?.3 Justice Scalia himself answered thisquestion in a well-known commentary on the foundations of law:

369. See Manning, supra note 349, at 1349 (noting that, because of the anonymity of theauthors, state ratifiers "would have had no reason to believe that Madison, Hamilton, or Jaywere authorized to speak for the Convention"); Nicholas S. Zeppos, Legislative History and theInterpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 VA. L.REV. 1295, 1316 (1990) (emphasizing that the essayists lacked authorization to represent theviews expressed at the Philadelphia Convention).

370. See, e.g., Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951)(Jackson, J., concurring) (recognizing the superior validity of committee reports above otherforms of legislative history because they are generally "well considered and carefullyprepared").

371. See supra text accompanying notes 248-50.

372. See supra note 360 and accompanying text.373. See, e.g., Printz v. United States, 521 U.S. 898, 910-15 (1997) (citing cautions in The

Federalist against congressional imposition of duties upon states "without consent of the States,"id. at 911).

2006]

DUKE LA W JO URNA L

I will consult the writings of some men who happened to bedelegates to the Constitutional Convention-Hamilton's andMadison's writings in The Federalist, for example. I do so, however,not because they were Framers and therefore their intent isauthoritative and must be the law; but rather because their writings,like those of other intelligent and informed people of the time,display how the text of the Constitution was originally understood.Thus I give equal weight to Jay's pieces in The Federalist, and toJefferson's writings, even though neither of them was a Framer.What I look for in the Constitution is precisely what I look for in astatute: the original meaning of the text, not what the originaldraftsmen intended.3 4

This approach seems to involve an "abstract, grammatical" use ofthe Papers.375 Because the enacted terms of the Constitution arecentral to determining "original meaning," the key question becomeshow those terms were viewed in the time and place of their adoption.Thus courts may consult The Federalist for much the same reason thatthey may consult "Samuel Johnson's dictionary or any other usageguide." '376 The cited text here, The Federalist serves the solepurpose of shedding light on then-accepted understandings of thewords and phrases that appear in the Constitution.

This approach to The Federalist has encountered resistance,"' inpart because it lends no special weight to the "character andachievements of Hamilton and Madison.""37 Justice Scalia's accountwould seem to treat no differently than The Federalist a commentaryon the Constitution crafted by a local blacksmith, so long as theblacksmith understood as well as Publius how the average ratificationdelegate would use the words that appear in the Constitution. Itmight even be that Justice Scalia would accord as much significance tothe views of "intelligent and informed" antifederalist writers as hewould ascribe to the views of Publius. The writer Brutus, for example,detected in the words of the Constitution particularly its vesting ofequity jurisdiction in the Supreme Court a broad grant of authority

374. SCALIA, supra note 360, at 38.

375. McGowan, supra note 224, at 835.376. Id. at 757.377. See, e.g., Eskridge, supra note 349, at 1312 (describing Justice Scalia's approach as

embodying "a weak justification for consulting The Federalist").

378. McGowan, supra note 224, at 835.

[Vol. 56:469

THE FEDERALIST

to the federal judiciary to safeguard unenumerated rights.379 If Brutuswas bright and fully familiar with proper use of the English languagein late-eighteenth-century America (as he surely was), does it notfollow that we should assign his views on the meaning of theconstitutional text as much significance as the views expressed in TheFederalist? According to Justice Scalia's methodology, it seems asthough we should.

One might say that judges should be leery of accepting Brutus'streatment of the judicial power because he was writing in an effort topersuade readers to oppose the Constitution. But that is the point. Bysymmetry of logic, courts should hesitate to rely on the no-less-advocacy-driven writings of Hamilton, Madison, and Jay. Standardworks by Blackstone or Coke might well serve a dictionary functionby fleshing out generally understood meanings of legal termsemployed in the Constitution. Such works, however, are a far cryfrom pseudonymously produced newspaper editorials3 8 At the veryleast, Justice Scalia's treatment of The Federalist suffers from asignificant omission in that it offers no explanation as to why itsadversarial argument fairly "display[s] how the text of theConstitution was originally understood. 38'

D. The Federalist as Treatise

As shown, there is reason to reject both the legislative-historyand dictionary-like-aid approaches to judicial use of The Federalist.Some analysts have sought to fill the resulting gap by arguing thatcourts should consider Publius's teachings in much the same way theyconsider scholarly treatises on law. According to this theory, courtsshould approach The Federalist like they approach books written byJoseph Story or James Kent, or perhaps even Laurence Tribe. AsProfessor McGowan notes, "[t]his is how the Court tended to use theessays in the eighteenth and nineteenth centuries, and it is the onlyform of reasoning the essays support very well." '382

379. See Brutus XI, N.Y. J., Jan. 31, 1788, reprinted in 2 THE COMPLETE ANTI-FEDERALIST,supra note 18, at 417, 419 (stating that the Constitution "vests the judicia[ry] with a power toresolve all questions that may arise on any case on the construction of the constitution").

380. See Manning, supra note 349, at 1355-59 (cautioning against "equat[ing] theexpressions of Publius with the understanding of the ratifiers").

381. SCALIA, supra note 360, at 38.382. McGowan, supra note 224, at 756.

2006]

D UKE LA W JO URNA L

This point of view raises foundational issues about the nature ofconstitutional interpretation. To begin with, what business do courtshave relying on treatises in the first place? At least from an ardentlyoriginalist perspective, courts should eschew reliance on treatises, orat least most of them, because they typically tell more about the viewsof the treatise writer than about the views of the framers. Notably, theleading proponent of the learned-treatise approach seems to concedethis point, acknowledging that treatise-based views of The Federalist"do not assert that the essays reveal what the drafters of theConstitution thought ..., nor do they claim that the essays show whatordinary speakers of late-eighteenth century English thought thewords of the Constitution meant."383 Even if The Federalist qualifies asa learned treatise, this concession is significant because fewjudges regardless of the interpretive principles they embrace viewtreatises as having the level of interpretive clout normally associatedwith The Federalist Papers. The question thus remains of whether thelearned-commentary approach to The Federalist gives the work its fulland proper due.

In any event, the key point developed earlier in this article rubsup hard against viewing The Federalist as a learned commentary.Common experience suggests, after all, that what makes "learnedcommentaries" learned is in large measure that the relevant writingreflects the work of a detached, objective, and non-self-interestedscholar. The function of The Federalist as a tool of political debatemakes it hard to view its authors in this light. Put simply, it is strainedto justify reliance on The Federalist by characterizing it as a learnedtreatise when its authors wrote it not as a learned treatise but as self-serving campaign literature.

E. The Federalist as Brilliant Philosophy

The preceding discussion focuses on originalist styles ofconstitutional interpretation. This is the case because that discussionprimarily addresses the question whether The Federalist can qualify asa proper indicator of "original intent" or "original meaning" in lightof its demonstrably political-persuasion-based character." It is hardly

383. Id.384. See Eskridge, supra note 349, at 1312-16 (discussing the difference between "original

intent" and "original meaning" but further arguing that this difference is "questionable" and atbest "a fine one").

[Vol. 56:469

THE FEDERALIST

surprising that a consideration of The Federalist's role inconstitutional interpretation should have an originalist focus. Publius,after all, wrote his essays during the very time period when originalthinking about the Constitution occurred. 5 Yet if there are seriousproblems with looking to The Federalist as legislative history or as anindicator of then-existing linguistic understandings, a surprisingconclusion might follow-namely, that nonoriginalist, rather thanoriginalist, styles of interpretation provide the firmest basis forjudicial use of The Federalist. Charles Fried, for example, heads in thedirection of this conclusion when he writes that the Papers warrantjudicial attention because of their "intrinsic worth" and because theyreflect "the thought of the wisest men who had occasion to think mostdeeply" about the Constitution.3"

Observers other than Fried state even more clearly that TheFederalist should count in constitutional interpretation not because itreflects the thinking of the Constitution's ratifiers, but because itcontains unusually wise insights offered by writers deserving of thehighest respect.387 From this vantage point, relying on the writings ofAbraham Lincoln (for example) would parallel judicial invocation ofthe writings of Publius. Why? Because Lincoln like Hamilton,Madison, and Jay had the benefit of deep experience in the affairsof government, a brilliant understanding of human nature, andextraordinary practical wisdom. These qualities might not permitLincoln to offer much information about the thinking of long-deadratification delegates, but they would permit him to make invaluableobservations on how government works best. In fact, the SupremeCourt has cited Lincoln in defining the essential nature of the state-federal relationship.3 Likewise so the argument goes the Court

385. See McGowan, supra note 224, at 825-26 (noting that recent court cases tend to "citeThe Federalist in connection with decisions based on the 'original meaning' or 'originalunderstanding' of the Constitution").

386. CHARLES FRIED, ORDER AND LAW 63 (1991).387. See Ducayet, supra note 275, at 825 (suggesting that The Federalist "may serve as a

useful form of constitutional authority by providing a particularly sophisticated theory ofpolitical psychology," and adding that this "justification treats the work neither as evidence ofthe binding 'intentions' of the Framers nor as a dated and biased historical artifact, but rather asa rich lode of insights"); id. at 829-30, 833 (attributing a similar view of The Federalist to JosephStory and, at least in part, to historian Charles Beard).

388. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 821 (1995) (citing the GettysburgAddress for the proposition that "[o]urs is a 'government of the people, by the people, for thepeople').

2006]

DUKE LA W JO URNAL

should be free to cite the no less timeless and insightful work ofPublius.

There are at least three difficulties with citing The Federalist onthe theory that it embodies wise discourse. First, given theargumentative character of The Federalist, its pages may well notembody the most trustworthy as opposed to the most polemicallyappealing account of the matters the essays address. Writings thatattribute "political fanaticism" '389 and "distempered imaginations ' '39 toone's opponents, for example, do not have the same ring as TheGettysburg Address. Second, nonoriginalist styles of interpretation(or at least some of them) are controversial. In particular, concernsabout illegitimacy and indeterminacy would lead many scholars tobemoan an interpretive principle that read something like this:"Courts should interpret the Constitution to mean whatever wouldcause it to work best in the view of the wisest people." Yet, thenonoriginalist argument for invoking The Federalist seems to hinge onthis very notion.

Finally, even assuming that a sound nonoriginalist case for usingThe Federalist exists, few would argue that a nonoriginalistjustification would possess as solid a grounding in acceptedinterpretive traditions as a strong originalist justification.39 Putanother way, The Federalist will carry more interpretive heft if bothan originalist theory and a nonoriginalist theory for its invocation areavailable. I return, then, to the question whether The Federalist canproperly serve as a reasonable proxy for the intentions and meaningof those who ratified the Constitution.

F. The Federalist as Consensus Understanding

Commentators have offered a rich mix of theories for judicial useof The Federalist. Yet all of the theories considered so far suffer fromserious shortcomings, or at least from incompleteness. How can it be,especially from an originalist perspective, that a self-serving set of


390. THE FEDERALIST No. 8 (Alexander Hamilton), supra note 14, at 49-50.

391. But cf Ducayet, supra note 275, at 847-48 (questioning originalist methodologies inevaluating The Federalist's proper role in constitutional interpretation). It is outside thepurposes of this Article to explore the comparative merits of originalist and nonoriginalistmethods of interpretation. For present purposes, it suffices to note that the Supreme Court haslong considered references to the framers' intentions as among the important methods ofconstitutional interpretation.

538 [Vol. 56:469

THE FEDERALIST

campaign tracts should factor into the process of constitutionalinterpretation?

Answering this question requires circling back to the originalpurpose of The Federalist. As shown, that purpose was to set forth anargument. What is important, however, is that that argument was of aparticular kind, for the authors rooted their case for persuasion in ameticulous appeal to reason." To be sure, bombast and braggadociomade their way into the essays, and Publius appealed to visceralconcerns and emotional reactions along the way.3 93 At its core,however, The Federalist set forth a relentlessly cohesive and logicalargument built on lessons of experience, accepted principles ofhuman conduct, and deductions drawn from widely acceptedpremises."

The decision of Hamilton, Madison, and Jay to focus onreasoned argument carried with it a consequence of great significanceto present-day students of constitutional meaning. Precisely becausePublius's purpose was to gain support from a broad and diverseaudience with arguments based on reason, the views set forth in thePapers could be neither sloppy nor personal nor idiosyncratic.Rather, Publius's depiction of the Constitution had to reflect abroadly acceptable view of the document's meaning. And becausethat depiction had to reflect a broadly acceptable view, it seems fair toconclude that it articulated something that approximated a consensusunderstanding.9 It is this reason-coupled with the authors' geniusand their inside knowledge of the Convention's thinking that lendsThe Federalist a powerful claim to interpretive significance. Theauthors' genius plays a role because it suggests that they would anddid succeed in the task they undertook namely, to construct the bestpossible reason-based argument for ratification that, in turn, wouldbest speak to a wide and diverse audience. The authors' insideknowledge facilitated this effort by providing valuable insights about

392. See, e.g., supra note 310 (discussing development of this theme by ProfessorFurtwangler).

393. See supra Part II.F.394. See supra Part II.A.-II.E.395. See STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 22 (1993)

(noting that The Federalist presented "in aggregate the outer bounds as well as the centralsubstance of what their authors conceived was the claim they could make the object beingabove all persuasion on their readers' experience, aspirations, and habits of thought"); see alsoDucayet, supra note 275, at 822 (noting that The Federalist "was designed to place theConstitution in the most desirable light possible").

2006]

DUKE LA W JO URNA L

how the provisions of the Constitution might be elaborated in themost sensible, coherent and appealing fashion.396 And if The Federalistin fact sets forth something like a consensus view, it cannot help butshed light on the all-important question of what "We the People"meant to say in the words of the Constitution."

In sum, as William Eskridge explains, there are "[c]onventionsthat make it reasonable to suppose that certain focal speakers reflectmore than their own views when they make statements in the courseof public constitutional . ., debates."398 Even more important, thereare powerful reasons to conclude that those conventions apply withadded force to the writings of Publius.39

G. The Consensus-Understanding View and Other Theories

At the very least, these observations may help to strengthenother theories that support judicial reliance on The Federalist. To theextent that the essays qualify as legislative history, for example, itlends them weight to say that they embodied mainstream viewpointsthat an ordinary ratifier would likely share. In similar fashion, to theextent that the essays might give dictionary-like guidance to themeaning of constitutional words, it helps the case for judicial use thattheir authors prepared them with a strong sensitivity to the mind ofthe general public, rather than out of mere whim or highly specializedpurposes. This same point may also help to show why the writings of

396. It might be said in response that The Federalist reflected at most a likely consensus ofonly those pro-Constitution voters in New York. In particular, this argument gains support-atleast on a superficial level from the fact that Publius laced his case for ratification with appealsthat focused on the local interests of New York. See supra text accompanying notes 95-104,177-87. It seems apparent, however, that the special treatment of New York voters had more todo with the examples used in the essays to illustrate the Constitution's effects than with anyeffort to define the terms and purposes of the Constitution in light of New York's special needs.One significant fact confirms this non-single-state view of the argument made in the essays;upon their completion, Madison had them carted off to Virginia, where he used themextensively in arguing for ratification at the convention of his own southern, agrarian, slave-holding state. See KETCHAM, supra note 2, at 258, 261-62 (noting that The Federalist providedthe source of many arguments Madison made at Virginia's ratification convention); see alsoDucayet, supra note 275, at 822 (noting that the essays "were hastily published in book form sothat they could be distributed to partisans in other states").

397. See RAKOVE, supra note 34, at 15 (noting that The Federalist Papers are "[f]oremost"among contemporary sources reflecting the original understanding of the Constitution).

398. Eskridge, supra note 349, at 1313.399. See id. at 1318 ("[P]ublic dialogue of the sort engaged in by the authors of The

Federalist and the Anti-Federalists is potentially quite reliable for figuring out originalconstitutional understanding or meaning.").

[Vol. 56:469

THE FEDERALIST

Publius should count for more than the antifederalist writings ofcommentators such as Brutus. Brutus, after all, had every reason toportray the document's terms in their most extreme and controversiallight because he was seeking to drive voters away from ratification.Against this backdrop, when ratifiers adopted the Constitution, itseems unlikely they said in effect: "We believe that the Constitutionembodies the troubling interpretations put forward by Brutus, ratherthan the more moderate interpretations put forward by Publius, butwe are going to ratify anyway." More likely, they ratified becausethey shared something like the consensus-seeking vision, designed toinduce the very action they took, put forward in The Federalist."

The consensus-oriented nature of The Federalist may also bolsterits cite-ability on the theory that it is a learned legal treatise or a wisestatement of the principles of sound government. For example,although it strains common usage to place campaign literature in the"learned treatise" or "fount of wisdom" pigeonholes, as a generalmatter, the effort seems less farfetched when one recalls that thisparticular body of campaign material was studiously designed toappeal to human reason. The "sustained, systematic" character of TheFederalist° strengthens this suggestion. Hornbook law teaches, forexample, that judges must take care to read the provisions of a legaltext in light of one another.' Publius's effort at comprehensivenessensured that in treatise-like fashion The Federalist took fairaccount of this principle.

It is not surprising that thoughtful observers often point to theargumentative nature of The Federalist in suggesting that it shouldplay little role in constitutional interpretation. On close examination,however, the argumentative nature of the essays helps explain whythey carry interpretive force. Because Publius sought to appeal to abroad and diverse audience with methodical arguments rooted inreason, The Federalist is fairly seen as embodying something like athen-consensus understanding of the Constitution's meaning. To besure, The Federalist does not qualify as "holy writ," 3 and this is all

400. See id. at 1318 (noting that "key players ... have incentives to represent the commonlyheld views as faithfully as they can, lest they lose parts of the coalition" while opponents'"strategic statements are worth little in understanding the provision if it is adopted, becausetheir incentives are to exaggerate and distort the meaning and effect of the provision").

401. Rakove, supra note 3, at 234.

402. 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION §

47.02, at 139 (5th ed. 1992) (describing "whole act" rule).

403. Tillman, supra note 218, at 617.

20061

DUKE LAW JOURNAL

the more the case because of its campaign-rhetoric roots.4 °m As a

result, courts must handle the essays with no less, and perhaps more,care than other tools of interpretation. At the same time, TheFederalist must be given its due. Over the past two centuries, theCourt has struck this balance in a sensible fashion, refusing to viewthe essays as an "authoritative exposition of constitutionalmeaning" ' 5 but according them "great respect in expounding theconstitution.",406

CONCLUSION

The authors of The Federalist set forth an argument that waslayered and complex. They made sure to appeal to the specialinterests of their New York readers. To a phalanx of argumentsfounded on history and common sense they added color and imagerydesigned to bolster their appeals to logical reasoning. Hamilton,Madison, and Jay urged their readers to recognize the wisdom ofpractical accommodation. They appealed to pathos and ethos as well,particularly by aligning the cause of ratification with America'scelebrated revolutionary heritage.

What may be gleaned from the authors' nuanced interweaving ofthese different strands of argument? To begin with, the accountoffered here removes any doubt about the centrality of strategic andpolitically motivated argument to the plan of Publius. This intenselypartisan purpose in turn provides good reason not to accept blindlythe essays as a determinative statement of the Constitution's purposesand meaning. At the same time, the argumentative tenor of TheFederalist does not strip it of significance as a source of constitutionalexegesis. Indeed, the persuasion-driven character of TheFederalist founded on comprehensive arguments directed at a broadaudience and rooted firmly in reason tends to support the view thatthe writings of Publius approximated a widely shared, then-existing,coherent understanding of the Constitution.

Whatever one concludes about these matters, one thing iscertain. The intensely political purposes of The Federalist's authors

404. See, e.g., Manning, supra note 349, at 1358 (noting that, while "the room for strategicmaneuvering might have been circumscribed by the need to make plausible arguments,"nonetheless "[w]ithin that range.., the exposition of particular understandings or provisionsmight well reflect the shadings of political strategy").

405. Id. at 1365.406. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 433 (1819).

[Vol. 56:469

THE FEDERALIST

brought about the enduring impact of their work. It was the ardor andenthusiasm that the authors brought to their task, after all, thatgenerated the clarity, comprehensiveness, and overarching qualitythat have ensured the Papers' persisting fame. To be sure, Hamilton,Madison, and Jay focused their energies on pushing the case forratification among citizens of their own time and place. They did so,however, with the all-out effort of single-minded advocates bent onpromoting a cause they viewed as transcendently important. It wasthis drive to persuade, fueled by passionate commitment, thatproduced what may well be-as Thomas Jefferson put it-"the bestcommentary on the principles of government which ever waswritten.,401

407. Letter from Thomas Jefferson to James Madison (Nov. 18, 1788), in 1 THE REPUBLICOF LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON1776-1826, at 566, 567 (James Morton Smith ed., 1995).

20061

The Rhetoric for Ratification: The Argument of 'The ...

Documents